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

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.

And that is when the real drama begins.

Once indicted by the ICC, the suspects will be prisoners for as long as their cases last, and any further political or economic interest they have will be frozen, if not eternally destroyed.

Will any of them surrender peacefully?

Once in The Hague, the suspects will be entitled to, among other things, access to the evidence against them.

Thomas Lubanga is the most prominent militia leader from DR Congo to be arraigned in The Hague court, with grim and macabre charges such as rape and killing UN officials.

But his trial has stalled because the court has ordered that he be given the 200 pages of evidence, which the prosecutor is refusing to release. Because of this refusal, Lubanga may be acquitted.

In addition to the legislative and legal hurdles, political goodwill may be absent.

If the suspects are people high up in the ODM and PNU structures, will Prime Minister Raila Odinga and President Kibaki sacrifice their surrogates for the good of this country?

Kenya is a tribalised country, no matter what anybody may say, and the Waki report says categorically that negative ethnicity, including the ethnicisation of the presidency, is real.

So will the PM and the President risk the wrath of the suspects’ tribes by handing them over to the The Hague? The President wishes to leave a legacy and Mr Odinga Raila would like to replace him in 2012.

It is recommended that the court be set up by the two leaders.

In 1799, Napoleon Bonaparte, a diminutive Corsican, came to power in France through a coup d’etát and, five years later, declared himself emperor. He went on to create the largest and most successful modern empire stretching from Europe to Africa.

In 1812, his fabled army was defeated at the Battle of Waterloo by weak armies, led by Prussia, that had come together in the Seventh Coalition, bringing to and end the Napoleonic empire and dreams. Waterloo has come to symbolise the end of all great empires and ideas.

Thus, although the Waki report may have broken new ground, could it be that it will meet its waterloo? Will Parliament, Mr Odinga, President Kibaki and The Hague’s arresting and trial process sabotage it?

The jury may be out but, I am pessimistic that the report will gather dust at the National Archives.

And what a waste it will be to a commission so honourable!