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UNCLAS SECTION 01 OF 04 NAIROBI 002401 
 
SENSITIVE 
SIPDIS 
 
LONDON AND PARIS FOR AFRICA WATCHERS 
 
E.O. 12958: N/A 
TAGS: PREL PGOV KDEM KE
SUBJECT: POST-ELECTION VIOLENCE COMMISSION RELEASES REPORT 
 
REF: A. NAIROBI 2266 
     ¶B. NAIROBI 1378 
     ¶C. NAIROBI 1170 
 
------- 
 SUMMARY 
 ------- 
 
¶1. (U) The Commission of Inquiry into Post-Election Violence 
(CIPEV) submitted its report to President Mwai Kibaki and 
Prime Minister Raila Odinga on October 15 (Ref A).  The 
report proposes the establishment of a special tribunal to 
try high-level organizers of post-election violence.  It also 
proposes comprehensive reform of the Kenya Police Service and 
Administration Police, including their merger.  CIPEV found 
sufficient evidence to charge ten high-level organizers of 
post-election violence.  Justice Philip Waki, the chairman of 
the commission, briefed the local diplomatic community on 
October 16 on the report and emphasized that the 
international community had an important role in keeping 
pressure on the government to ensure implementation.  He 
noted that Kibaki and Odinga promised to implement the 
report's proposals, but expressed fear that, like prior 
commissions of inquiry, CIPEV's proposals could be undermined 
by Kenya's culture of impunity.  He and the other 
Commissioners also appealed to the international community to 
finance the initiatives contained in the report. 
 
¶2. (U) CIPEV presented its report to Kofi Annan on October 
17, along with the names of the ten high-level organizers of 
post-election violence.  Annan has agreed to deliver the 
names of the accused to the International Criminal Court 
(ICC) if sufficient steps are not taken to ensure 
accountability.  CIPEV's recommendations provide a solid 
foundation for Kenya to begin to address issues of 
accountability and to undertake much-need police reform.  We 
will weigh in as necessary to ensure that its proposals are 
implemented and will consider providing assistance, if 
requested.  End Summary. 
 
-------------- 
THE COMMISSION 
-------------- 
 
¶3. (U) The so-called Waki Commission, or Commission of 
Inquiry into Post-Election Violence (CIPEV), was formed as 
part of the Kofi Annan-led mediation process which brought an 
end to Kenya's post-election crisis.  CIPEV was mandated to 
make findings of fact related to post-election violence, to 
recommend measures to prevent future violence, and to propose 
legal actions against those found guilty of organizing or 
perpetrating acts of post-election violence (Ref C). As a 
commission of inquiry, all those providing evidence did so 
under oath. CIPEV functioned on an adversarial basis, with 
those providing evidence entitled to legal representation and 
subject to cross-examination (Ref C). 
 
------------------------------------ 
ACCOUNTABILITY -- A SPECIAL TRIBUNAL 
------------------------------------ 
 
¶4. (U) The CIPEV submitted its report to President Mwai 
Kabaki and Prime Minister Raila Odinga on October 15; the 
following day CIPEV Commissions and the Commmission Secretary 
briefed the diplomatic community on the report and its 
findings.  The underlying assumption of the report is that 
Kenya's criminal justice system is capable of trying 
low-level perpetrators, but it is neither capable nor willing 
to hold high-level figures accountable.  Therefore, CIPEV 
focused its investigative efforts on high-level organizers 
and financiers of post-election violence, individuals 
heretofore considered above the law and effectively protected 
by Kenya's so-called "culture of impunity."  The key CIPEV 
recommendation is the estabishment of an internationally 
supported tribunal that will enforce the law and ensure 
accountability; the recommended mechanism would be 
independent of Kenya's judicial and police investigation 
authorities, which have largely shown themselves incapable or 
unwilling to hold powerful figures accountable. 
 
 
NAIROBI 00002401  002 OF 004 
 
 
¶5. (U) The Special Tribunal for Kenya (the Tribunal), as 
recommended by CIPEV, would try high-level organizers of 
post-election violence, and be based on a constitutional 
amendment.  CIPEV considers the constitutional amendment 
necessary to head off constitutional challenges -- which have 
been used to delay or overturn previous attempts to prosecute 
powerful persons.  The Tribunal would have its own 
investigative and prosecutorial capacity, its own public 
defenders office, trial chamber and appeals chamber, and the 
ability to protect witnesses.  Waki stated that, while 
Kenyans would head the three-member Trial and Appeals 
Chamber, the Special Tribunal needs a significant 
international component to give it credibility.  The CIPEV 
report proposes that each Chamber include two judges from 
Commonwealth states.  It also suggests that the investigative 
branch be headed by an international.  The presence of 
international investigators would greatly increase public 
willingness to come forward, Waki believes. 
 
¶6. (U) In the course of its investigation, CIPEV gathered 
evidence it believed sufficient to raise charges against ten 
politically well-connected persons (Septel), according to 
Waki.  Waki did not exclude the possibility that charges 
could be raised against additional individuals, but he said 
further investigations would be needed to do so.  CIPEV 
decided not to release the names of the ten individuals or 
make public the evidence against them.  Releasing these names 
would divert public discussion from the substance of the 
report, according to Waki.  Waki stated that he expects the 
President and Cabinet to approve the proposal to establish 
the Tribunal soon and submit the proposal to parliament. 
Parliament will then adopt the constitutional amendment and 
enabling legislation on its own timeline, after which the 
President would assent.  The Tribunal could be stood up 
within 45 days from the Act coming into force. Waki hoped 
that the Tribunal could be stood up in about four to five 
months. 
 
------------------------------- 
ROLE OF STATE SECURITY AGENCIES 
------------------------------- 
 
¶7. (U) In the briefing for the diplomatic community, 
Commissioner Gavin McFadyen, a former Deputy Commander of the 
New Zealand national police force, stated that there was lack 
of coordination among the National Security and Intelligence 
Service (NSIS), the Kenya Police Service (KPS), and the 
Administration Police (AP).  Specifically, the NSIS had some 
very good advance information about preparations to undertake 
post-election violence, but the police services did not act 
on the information, according to McFadyen.  He concluded that 
the NSIS performed its information gathering function well, 
but expressed "grave reservations" about some NSIS activities 
in the run-up to, and the aftermath of, the elections. 
McFadyen particularly criticized the NSIS attempt to obtain 
election observation accreditation for 55 of its officers, 
terming it an illegitimate attempt to influence the 
election's outcome. 
 
-------------------- 
POLICE REFORM NEEDED 
-------------------- 
 
¶8. (U) The CIPEV report describes the KPS and AP as poorly 
prepared for the elections.  It blames the KPS and AP 
leadership for the scale of the violence, and concludes that 
the violence could have been much better contained had the 
police acted and planned in accordance with the information 
known in advance.  According to McFadyen, CIPEV took evidence 
of innumerable instances where police officers acted bravely 
and attempted to stop the violence.  However, the police were 
overwhelmed by the scale of the violence.  Still, there were 
instances when police either did nothing to stop or actively 
assisted in acts of post-election violence.  Additionally, 
CIPEV took evidence on 405 deaths caused by police shootings. 
 McFadyen concluded that many police shootings could not be 
explained legally or operationally.  McFadyen was 
particularly critical of the behavior of the AP.  He stated 
that the AP top leadership acted "nefariously and contrary to 
law," especially in sending 1,600 AP officers to act as PNU 
 
NAIROBI 00002401  003 OF 004 
 
 
polling observers in the opposition stronghold of Nyanza 
Province.  McFadyen noted that the AP was too closely 
identified with local authorities, which hampered its 
credibility with the Kenyan people. 
 
¶9. (U) CIPEV recommends a series of concrete reforms for KPS 
and AP, including a thorough review and revision of tactics 
and use of force doctrine employed by Kenyan police, the 
creation of a modern Code of Conduct, and a complete revision 
of the Police Act.  The report also recommends that a 
professional police officer head the Kenyan police service. 
(Note: Police Commissioner Hussein Ali is a career military 
officer. End Note). In its most sweeping proposal, CIPEV 
proposes merging the AP and KPS.  McFadyen acknowledged the 
difficulties of merging distinct institutions with unique 
cultures, but stated that, "sometimes the hard work is 
worthwhile."  CIPEV also proposes the establishment of a 
Police Reform Group, headed by an international with 
experience in police reform, to undertake a four month 
top-to-bottom review to suggest necessary further reforms. 
The report also advises the establishment of a police 
ombudsmen's office, which would be authorized to review 
current complaints and disciplinary processes within the KPS 
and would have the power to hear and investigate public 
complaints against the police. 
 
--------------------------------- 
GENDER-BASED VIOLENCE HIGHLIGHTED 
--------------------------------- 
 
¶10. (U) CIPEV made a significant effort to address 
gender-based violence (GBV) in its investigation (Ref B). 
George Kegoro, the Secretary to CIPEV, told Poloff that CIPEV 
 established partnerships with prominent NGOs around the 
country, especially the Kenyan Federation of Women Lawyers 
(FIDA).  FIDA provided lawyers to take "in camera" testimony 
of survivors of GBV.  The CIPEV report concludes that most 
victims of GBV were poor women, although some men also 
experience GBV, and that sexual violence was generally 
ethnically motivated.  Most persons who came forward to 
testify had been gang-raped.  The report alleges that a 
significant number of perpetrators of GBV were members of 
police forces.  It also says that police were not prepared to 
treat GBV as seriously as other types of crime.  Individuals 
testified that police often refused to take reports of GBV, 
although others testified that some police assisted victims 
of violence to obtain medical assistance.  The report 
concludes that it is necessary to educate and train police 
services to take GBV seriously.  The report proposes the 
establishment of a Rapporteur on Sexual Violence to advise 
police on GBV.  The report also recommends compensation to 
victims of GBV. 
 
¶11. (SBU) Comment: Commissioner Ali responded on October 17 
to the report's damning conclusions related to police 
treatment of GBV by announcing the formation of a panel of 20 
female officers to re-examine cases of GBV with the intent to 
bring charges against perpetrators.  However, it is very 
difficult to prosecute GBV cases without fresh evidence. 
Ali's move appears to be more an effort at damage control 
than a committment to treat GBV seriously. End Comment 
 
-------------------------- 
KOFI ANNAN RECEIVES REPORT 
-------------------------- 
 
¶12. (U) Kofi Annan traveled to Nairobi and received the CIPEV 
report on October 17.  CIPEV and Annan agreed that CIPEV 
would give him the names of the ten people and evidence 
against them.  If, at an indeterminate future date, it was 
clear that either the Tribunal would not be created or that 
it was being subverted, Annan is to submit the names and 
evidence to the International Criminal Court (ICC) for 
investigation and possible prosecution.  Last week, the 
Special Prosecutor of the ICC was quoted in the press as 
stating that investigating the events in Kenya remains a 
priority. 
 
------- 
COMMENT 
 
NAIROBI 00002401  004 OF 004 
 
 
------- 
 
¶13. (SBU) CIPEV's efforts to get at the heart of the 
post-election violence are laudable, especially given the 
short mandate and limited resources at its disposal (Ref B). 
Its proposals provide a solid foundation for Kenya to begin 
to address issues of accountability and to undertake 
much-need police reform.  The report puts police leadership 
under pressure and could provide impetus for President Kibaki 
to reconsider his support for Commissioner Ali.  Thus far 
President Kibaki and Prime Minister Odinga have given 
positive signals regarding implementation of the reports 
conclusions.  In addition, influential political figures on 
both sides of the grand coalition have publicly urged action 
against those implicated in post-election violence.  Kenyan 
public opinion has also been overwhelmingly positive, 
demonstrating once again that Kenyans want to ensure that 
conflict such as the post-election violence does not recur. 
However, the culture of impunity in Kenya remains strong and 
the CIPEV proposals provide ample opportunity to those who 
might want to scuttle the strong measures proposed.  Post 
will continue to support implementation of the report's 
proposals, and will consider providing appropriate 
assistance, if requested. 
RANNEBERGER