UN report puts the Kibaki team on trial

United Nations special rapporteur Philip Alston’s interim report on extra-judicial killings is bold and damning. It puts the government’s reputation on trial because UN rapporteurs enjoy unequalled powers and moral authority.

However, in general, the rapporteurs regard themselves as gatherers of facts rather than political campaigners. They take pains to maintain their independence, impartiality and objectivity.

They balance the information provided by governments and lobby groups. They perform a delicate balancing act and discharge their duties with apparent thoroughness and sobriety.

Prof Alston even recommended the sacking of Attorney-General Amos Wako, the man who preceded him as the UN special rapporteur on extra-judicial, summary or arbitrary executions (1992-1998).

SINCE HE WAS APPOINTED TO THE job in 2004, Prof Alston has investigated killings in the Philippines, Brazil, Central African Republic, Afghanistan and the US. But he did not make such drastic recommendations.

One can fault his 10-day mission as too short. For instance, did he have enough time to carry out thorough investigations?

While he admits that the “biggest challenge” for him was “to ascertain the facts in relation to each issue”, he assures Kenyans that in relation to police and military torture and killings, he “engaged in a painstaking and careful process of gathering information”.

He also tells us that his “work began several months ago as I analysed all of the available government, parliamentary, police, and civil society reports on issues related to unlawful killings”.

In Kenya he held meetings in Nairobi, Nakuru, Eldoret, Kiambaa, Bungoma, Mt Elgon, Kisumu and Nyeri. He also met government officials at all levels and a wide range of other actors during his February 16-25 investigations.

“In addition, my team and I interviewed well over 100 witnesses and victims on an individual basis.”

Prof Alston is greatly qualified for the job. A native of Australia, he is a professor of law at the New York University school of law, specialising in human rights. He is also a director of the school’s Center for Human Rights and Global Justice and special adviser to the UN High Commissioner for Human Rights.

Perhaps the only valid reason that we can find to fault his report is his lack of interest in the victims of the post-election violence that was not police-related.

He is not as eloquent on their plight as he is only on the extra-judicial killings by the police. He shows this particular bias by even recommending compensation for victims of police violence but not for the others.

The impression that he did not have enough time for the investigations lingers on. One can also accuse him of carrying out little original investigation, depending too much on earlier reports and being fed propaganda.

He also appears to have been overwhelmed by the police story.

“Perhaps the most surprising outcome of my visit was the extent to which I received overwhelming testimony of the existence of systematic, widespread and carefully planned extra-judicial executions undertaken on a regular basis by the Kenyan police,” he notes in the report.

“The police commissioner in particular, along with various other senior officials, assured me that no such killings take place. But he and his colleagues appear to be the only people in the entire country who believe this claim.”

All the same, the government must not rubbish the report; it must show that it is not in denial. It must show it is willing to listen and respond in such a way that it exhibits accountability over the extra-judicial killings. It must also show beyond doubt that it upholds human rights. It must, in fact, live up to the legal fiction that it invited Prof Alston.

IT IS LEGAL FICTION BECAUSE GOVERNMENTS never “invite” rapporteurs to investigate extra-judicial killings. Prof Alston created the invitation to be able to perform his duties. The government subsequently “invited” him.

A government’s “invitation” reflects government’s willingness to permit outside scrutiny. It is a signal that it is prepared to engage on the issue. The government must not renege on this. Kenya was a little tardy, but responded positively after Prof Alston, in a report, complained to the UN General Assembly.

The government must at least recognise that Prof Alston’s report has provided powerless Kenyans, particularly the victims, with a powerful tool to demand justice.