Waki report breaks new ground, but will it be implemented?

• The document may gather dust at the national archives

The commission of inquiry into the post-election violence, headed by Mr Justice Philip Waki, has just submitted its 529-page report.

The team, mainly because of the members and joint secretaries, who are known for integrity and intelligence, broke grounds that all previous ones never did.

The report places blame where it lies. The systemic failure on the part of police, the provincial administration, the media and politicians, is brought to the fore.

Above all, it frankly states that President Kibaki failed to unite the country, and that his reneging on the 2003 memorandum of understanding was the basis of the violence.

As we read through the report, blame is flying around as trepidation permeates the country. As always, the heat is causing confusion.

The report refers to a list of leading violence instigators and financiers, some of whom are serving Cabinet ministers and leading businessmen.

Suspects’ names are being mentioned in low tones, but no-one will know for sure who they are till the wax on the sealed envelope is melted.

The document offers two major recommendations — setting up a special court to try the suspects and restructuring the police force.

But will they be implemented?

Their implementation needs both legislative and constitutional enactments. Parliament is the sole organisation to enact the law that will establish the court and shake up the police. Five of the suspects, we are told, are ministers, so how can they legislate against themselves?

The first instinct of anybody — even if they are insane — is self-preservation.

Constitutional amendment will also be needed.

The Constitution recognises the courts as currently constituted and crimes as those at present set out in the Penal Code.

Crimes facing the suspects may not be in the Penal Code as most are international and subject only to the jurisdiction of the International Criminal Court (ICC) in The Hague.

This special court and the domestication of the crimes and making them retroactive need anchoring in the Constitution.

To achieve this, more than 144.3 MPs have to vote in favour of the amendments. This means that if 77.7 MPs are absent or vote against, the amendments will not pass.

The 10 suspects are no ordinary Kenyans and, with due respect, Parliament has shown that it pays homage to the highest bidder. Getting 77.7 MPs to be absent or vote nay is small change.

In the event that the statutory and constitutional amendments are not effected within 60 days from October 17, Waki recommends that the sealed envelope be sent to The Hague.