Waki gave Annan secret list to beat impunity, panel told

A commission that investigated the post-election violence gave a secret list to Mr Kofi Annan instead of President Kibaki “to beat impunity”.

Justice Philip Waki, who chaired the commission, was put to task over the controversial decision on Monday as the Judicial Service Commission (JSC) began interviews for Supreme Court judges in Nairobi.

Attorney General Amos Wako — the President’s chief legal adviser — asked Justice Waki why his team decided not to include everything in the report handed to the Head of State, especially “the famous envelope”.

“The commission did not want to be like some previous commissions, whose reports were never acted on by the Executive, hence we had to devise an approach to deal with impunity,” Justice Waki said.

“We also knew our country. We knew what could happen. So, this was a deliberate choice,” he said.

The judge was the chairman of the defunct Commission of Inquiry into the Post-Election Violence, whose report has formed the basis of the current constitutional, electoral and judicial reforms initiated to ensure that the violence does not occur again.

On Monday, he argued that the commission was a result of an international intervention in the Kenyan crisis, so it also was answerable to the African Union through the Panel of Eminent Persons chaired by Mr Annan.

Justice Waki, who was the first candidate to face the interview panel, was also questioned on why his team did not offer everybody who was adversely mentioned a chance to give their side of the story.

JSC member Ahmednasir Abdullahi, said that it was unacceptable for a Supreme Court judge to fail to accord all those mentioned adversely a chance, and asked:

“How can you assure us that if a similar matter came before you, you would not fail again?”

Justice Waki explained that given the time that had been allocated for the probe into the violence, the team did its best to accord those who could be reached a chance to defend themselves.

For those who could not be reached, the commission, he said, recommended further investigations. “We did not have the final word,” he said. “We were not making any judgement.”

The panel also asked Justice Waki about his academic qualifications to join the Supreme Court, whose major role will be to interpret the Constitution.

Mr Wako wanted to know whether the judge could handle issues beyond human rights and environmental law, since he did not take a course on constitutional matters while studying for his law degree.

The candidate answered that he may not have the paperwork, but nothing could substitute the experience that he had gathered.

He added that he would be willing to take any informal examination to gauge his grasp of constitutional matters.

The judge also recounted his experience during the purge on the Judiciary in 2003.

The panel had wanted to know why he chose to go through the tribunal that was constituted to investigate corruption allegations against judges.

The tribunal cleared Mr Waki of corruption allegations.