11.20.08

Amidst the myriad complaints against the Waki Report, I have yet to read or hear or see anything that discusses the structural conditions under which the report was written.

A few samples taken from the report, my emphases.

Initially the Commission attended to a number of logistical and administrative matters before beginning its substantive work. These included obtaining office space, hiring staff, and collecting background documents. One time consuming matter that kept the Commission from immediately addressing its substantive work was the lack of office space. This was something the Commission did not and could not have anticipated. The Panel of Eminent African Personalities kindly assisted with temporary quarters even though they were not formally responsible for the Commission. However, it took three weeks of discussion with the Panel and various government officials until the Commission was properly settled and was able to clarify which entities would provide the logistical support needed to move forward. (2)

The Commission concluded early in its tenure that it would not have enough time to visit all areas that had been heavily affected by the post election violence. The life of the Commission, as provided in the Gazette, was only three months and set to expire on 22 August 2008. Hence, the Commission immediately wrote to His Excellency the President of Kenya and to the Panel of Eminent African Personalities asking for a 60 day extension so that it could plan ahead. While the Panel supported the request, the National Dialogue and Reconciliation team, which was the final decision maker, did not. Instead the Commission was granted only a 30 day extension, published in the Gazette Notice no. 7288 Vol. cx – no. 67 dated 12th August 2008. (3)

Because of the failure to obtain a 60 day extension of time the Commission abandoned its original plans to conduct public hearings and investigations in Kakamega, Busia, Kericho, Bungoma, Laikipia, Thika and Limuru. Eventually, the Commission received another two-week extension for the purpose of preparing this report . . . The difficulty of receiving limited extensions piecemeal rather than all at once diminished the capacity to engage in forward planning. (3)

The Commission also sought audience with the political leadership and managed to interview the Vice-President, the Prime Minister and one Deputy Prime Minister. An appointment sought with the President did not materialize while the former President declined to meet with the Commissioners. (5)

[M]any [victims] chose to speak in private because they feared reprisals or were too traumatized to come forth in public. The Commission took great care to protect the privacy of witnesses who testified in camera. However, we did not have a reliable witness protection program which might have given greater solace to others who avoided speaking to us. One of the greatest challenges was to find victims and convince them to testify something the Commission went to great lengths to do in spite of its constraints, including time. The investigation team of the Commission was able to come to towns only two or three days before the Commission. Hence, they had very limited time to find and prepare witnesses, something that elicited disappointment, particularly when the Commission was unable to stay long enough to hear everyone who wanted to testify. (9)

The Commission appreciates very well that in the final analysis only a miniscule sample of the avoidable suffering inflicted upon innocent Kenyans was heard. (9)

Interestingly, it was only after the Commission had held its hearings that members of the public came forward to the investigators seeking to testify. (10)

In Eldoret, the Commission faced two main drawbacks. First, as in all places the Commission visited, there were time constraints. Given that some parts of the North Rift were major locus of the violence, the Commission could have benefited from more than the three days it had. Second, and most importantly, there was a pervasive climate of fear facing victims in the Eldoret area. Some witnesses who were worried about their safety were not prepared to testify in Eldoret. A few came to Nairobi to protect their anonymity. It is possible some witnesses who would have liked to testify to the Commission did not have the courage to do so and could not afford to meet us elsewhere. (11)

[U]nlike other parts of the country, the Commission received little or no assistance in the mobilization of witnesses and individuals who could testify from organized groups within [Western province]. Correspondence to the local branch of the Law Society of Kenya, for example, remained unanswered. (13)

[T]the Commission hoped that it would have an opportunity to serve all individuals adversely mentioned during its inquiry with notices of such mentions and grant them an opportunity to record their evidence with the Commission. For this Commission that opportunity never arose for a large number of adversely mentioned persons except for a few who came before us. Even in these cases, it would still be necessary for the Commission to carry out further investigations before naming names to verify all the material facts. The main reason why this threshold was not met is that the time allocated to the Commission to complete its task was extremely limited; it was in fact too short to contact and hear the side of all those who had been adversely mentioned during the Commission’s hearings. (17)

Based on these samples, Kenyans should have questions for the government.

1. Did the Waki Commission have the conditions necessary for it to complete its mandate successfully?
2. Why did the government deny the Commission sufficient time to produce a more complete and accurate report?
3. Could the government have helped witnesses and victims by providing them with transport to hearings?
4. What guarantees could the government have given witnesses and victims to allay their fears?
5. Why did the National Dialogue and Reconciliation Team refuse to support the Commission’s request for an extension?
6. Why did Kibaki and Moi refuse to meet with the Commission?

The very same bodies and individuals who hampered the successful completion of the report should not be allowed to dismiss it as shoddy and unfinished, not when they did not create or enable the conditions that would have made it a more comprehensive and just document.

My task here is NOT to defend the report. It is to ask that we pay attention to the conditions under which it was produced. And that we take those conditions into account as we discuss the Report’s possibilities and limitations.