Having overcome enough odds to do its work - among them basic things like lack of office space, not having sufficient time to meet witnesses and failing to get appointments with former President Moi and current President Kibaki - the Commission worked with great determination, supported by the Panel of Eminent Persons (the Kofi Annan team) and the National Dialogue and Reconciliation Team.

Politicians, who voiced objections when the Waki Report was released, are now quiet. The revelation that the Commission had an envelope with a list of names of politicians and others who facilitated the violence caused much panic. The Waki Commission is not ‘toothless’ - it opened a direct route to the International Criminal Court, (ICC) in The Hague and politicians in Africa dread facing its prosecutor, Louis Moreno-Ocampo.

Justice Phillip Waki’s Commission has outdone all other commissions in Kenya’s independent history. According to Act 102 of the Laws of Kenya, commissions are formed to inquire into matters that need study and further action for the progress of the nation. The Waki Commission recognized that many commissions throughout Kenya’s history have been rightly described as having no impact and being a pure waste of resources. The spirit inspiring this commission was one of not wanting to let Kenyan citizens down while also protecting politicians, whom many pointed out as being catalysts of the violence that engulfed the nation, a pattern in Kenya’s past that has lead to deeply rooted impunity among the political elite.

The Waki Report has volumes of evidence. It found that a total of 1,133 people died in post election violence while 3,561 suffered injuries inflicted by hard objects. Over 350,000 were displaced, some of whom are still scattered in small tented camps in places such as Molo, Eldoret and Naivasha, which the Commission visited. Apart from the large group displaced by the violence, the Waki Commission also found that there were many more displaced Kenyans as a result of pre-poll violence, stemming way back from the first multi-party election in 1992. The Commission’s report documents that 117,216 private properties were destroyed in 2007. This included residential and commercial properties, farms and farm produce, offices, and vehicles.

The violence, the report shows, was in most parts planned. At times, it was of course spontaneous, but many of the names in the infamous envelope are there because they raised funds and transported people to fight. The report further reveals that gunshots from Kenyan police accounted for 962 casualties, out of whom 405 died. Gunshot wounds proved the most frequent cause of death.

The Commission documents rape in a specialized manner. Using experts, Federation of Women Lawyers Kenya (FIDA) and others, it recorded significant details.

The findings are shocking: sexual violence from gang and individual rapes was ethnically driven. There was cruel male and female genital mutilation. Even children’s labia were excised and their vaginas widened, some found with bottles stuffed up their private parts. One of the few verbatim accounts in the Waki Report is the story of a woman who was raped as her husband was murdered. She testified before the commission that three men cut up her vagina with a machete, complaining that she had a narrow opening. She thinks it would have been better if she had died.

Though she lived to tell this horrifying story, many others did not have the courage, the time or the means to testify, a fact that is mentioned in the report. The Commission finds that perpetrators of sexual violence included members of the General Service Unit, as well as regular and administrative police. The report says, “Many victims let members of the security forces into their houses assuming they would help them. Instead they found themselves being attacked.”

Even when victims said they had the HIV virus or even AIDS, they were still raped. No one was able to access Post Exposure Preventative treatment in the 72 hours required, so the report observes this is “likely to result in an increase of HIV/AIDs in Kenya.”

The Commission found that Kenyan authorities were totally unprepared to deal with sexual violence and that even though some police took victims to hospitals, “they did not record or investigate criminal complaints of sexual violence.” The Police Commissioner, Hussein Ali, is quoted before the Commission saying, “We will determine whether those crimes are fit and whether the people have been arrested and charged.” But in the meantime, “the Commission learned from its own psychologist that many female victims are still alone, unable to cope with the trauma and in need of help which is not available to them. A number of victims who had not received medical attention at the time they came before the Commission only managed to as a result of the Commission’s intervention.”

The Waki Report reveals that leaders who desperately wanted power were able to easily manipulate idle youth into doing anything to get them into positions of power. This has happened since 1992, and most of the time, the politicians’ promises to the militias were not fulfilled. The militias’ outrage was enough for Kenya to explode. Heightened electoral violence started during President Moi’s rule, the report explains, and especially when multi-party politics were reintroduced in 1992. Until then, Moi had been shielded from significant opposition for the presidency. (Kenyatta before him simply eliminated whoever seemed to have presidential ambitions.)

The use of violence became dangerously rooted in national institutions. Ethnic communities continued to invest much in capturing the top seat for one of their own. President Kibaki did not honor the memorandum of understanding through which Kenyans were promised a Prime Minister - in this case Raila Odinga, who pointed to Kibaki as the man to beat Moi in order to forge opposition party unity and take power. No meaningful action has ever been taken against those who use violence during elections. The Waki Commission found that this impunity has led to an ever-weakening democratic system.

Consequently, the Commission is eager to stop impunity, recognizing that it’s the only way of bringing justice to Kenya. It requires actions to be taken within specified deadlines and mandates alternatives should the process be interfered with. Starting December 18th, a Bill for the formation of The Special Tribunal for Kenya must be passed by Parliament within 45 days. Following the usual 14-day period, the President is supposed to assent to it and the tribunal will commence work immediately. In a bid to make the tribunal as impenetrable by politicians as possible, the Commission recommends including foreign and local judges, and a partly international staff.

The immediate and comprehensive reform of the Kenya Police Service has been recommended, but the public does not yet know if any actions have being taken. This reform includes the formation of the Independent Police Conduct Authority. It is not clear how the country’s paramilitary force (GSU) is affected as they are often associated with violence, including rape. The Waki Report recommends the full re-settling of those displaced by the 2007/2008 violence. It argues that the all victims, who in some cases lost members of their family and all of their wealth, need land as a priority.

In the event that the Special Tribunal does not start working, the Prosecutor of the ICC will be served with the names of those in the envelope. Further recommendations bar accused public servants from executing their duties until the matter is fully adjudicated. Those found guilty will be barred from ever running for public office or contesting any electoral position in the future.

To ensure citizen participation, the Freedom of Information Bill (2008) is being fast tracked so that Kenyans have full access to information. In addition, steps are being taken to successfully use the Witness Protection Act so that no one feels afraid to testify.

Some Kenyans oppose the Waki Report, arguing weakly that it was not done well, that it victimizes their favorite politicians and will tear the country apart. However, the majority of us just want to see the Commission’s recommendations implemented to stop this mad impunity. Last month, some proud Kenyans walked around in black T-shirts or carried large umbrellas that said, Yes, to Waki, even though the government lately arrests Kenyans for wearing slogans asking for justice.

Kenyans cannot take it lying down anymore - they are daily becoming aware that politicians divide us for their own good. Perhaps we will learn to stand up to them as a nation, using the power of the people. Either our nation lives or we bury it.

All photographs by flickr user Demosh used under Creative Commons licenses.

About the Author
Philo Ikonya is a Kenyan human rights activist, an ardent poet, writer and lecturer. She holds postgraduate degrees in the Arts and consults on gender, governance and media.