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UNCLAS SECTION 01 OF 03 NAIROBI 002865 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PGOV PHUM KDEM KE
SUBJECT: PRESIDENT, PM SIGN PACT TO FORM POST-ELECTION 
VIOLENCE TRIBUNAL 
 
REF: A. NAIROBI 2551 
     ¶B. NAIROBI 2401 
     ¶C. NAIROBI 1838 
     ¶D. NAIROBI 1170 
     ¶E. NAIROBI 2762 
 
SUMMARY 
 ------- 
 
¶1.  President Mwai Kibaki and Prime Minister Raila Odinga 
signed on December 17 an agreement to implement the 
recommendations of the Commission of Inquiry into 
Post-Election Violence (CIPEV), also known as the Waki 
Commission (Reftels).  The agreement tasks a Cabinet 
sub-committee to draft legislation to establish a Special 
Tribunal expected to try at least ten high-level politicians 
and businessmen whom the Waki Commission suspect organized 
and/or financed post-election violence.  The agreement 
further holds that any public official charged by the Special 
Tribunal will be suspended until the case is resolved and 
that those convicted will be barred from elective or other 
public office.  Kibaki and Odinga also agreed to undertake 
sweeping police reforms, including the establishment of a 
independent civilian oversight authority for police.  Signing 
the agreement meets the first of several benchmarks set by 
the Waki Commission.  Parliament must now enact legislation 
establishing the Special Tribunal by January 31 or risk that 
the International Criminal Court will assert jurisdiction. 
Kofi Annan, who mediated the agreement that ended Kenya's 
post-election crisis and which established the Waki 
Commission, issued a statement welcoming the agreement (See 
text para. 5).  The statement also stressed that the 
Government should meet the original implementation deadlines 
in the Waki report.  The Ambassador had urged the need for 
rapid action in his December 9 reform agenda speech (Ref D) 
and has also welcomed the action taken.  The legislation is 
largely ready and we expect President Kibaki will recall 
Parliament early from its recess to beat the deadline.  END 
SUMMARY 
 
The Waki Commission 
------------------- 
 
¶2.  The Waki Commission was appointed as part of the Kofi 
Annan-led mediation process which resolved Kenya's 
post-election crisis.  Its mandate was to investigate the 
causes and nature of the post-election violence, to recommend 
prosecutions where justified by the evidence, and to suggest 
reforms to help prevent future instances of election violence 
Ref D).  It began work in June.  After three months of 
testimony from state security personnel, politicians, 
individuals, and non-governmental organizations, the Waki 
Commission concluded that some post-election violence was 
planned, while other acts were a spontaneous reaction to the 
belief on the part of Odinga supporters that the presidential 
election had been stolen.  The Waki Commission found 
sufficient evidence to develop a list of ten suspected 
high-level organizers and financiers of post-election 
violence, but did not release the names of these suspects 
(Ref B).  It proposed a Special Tribunal be formed to 
investigate and try these suspects.  The report also 
concluded that planning for, and reaction to, post-election 
violence by Kenya's police services was inadequate.  It 
condemned police forces for the frequent use of excessive 
force to quell post-election violence.  The Waki Commission 
recommended significant reform to the Kenya Police Service 
and Administration Police (Ref B). 
 
¶3.  The Waki Commission, in conjunction with the 
International Criminal Court (ICC), created a strategy to 
ensure that its recommendations would be implemented. This 
strategy called for the Kenyan Government and Parliament to 
meet tight deadlines for establishing the Special Tribunal. 
The key deadlines were that President Kibaki and Prime 
Minister Odinga had to sign an agreement to implement the 
Waki Commission's recommendations within 60 days of receiving 
the report.  Subsequently, legislation establishing the 
Special Tribunal must be enacted within 45 days, with a 
further 30 days given to make the Special Tribunal 
operational.  Failure to meet any of these deadlines would 
result Annan recommending that the ICC initiate 
investigations of those suspected by the Waki Commission. 
Deadlines related to police reform were much less specific 
and do not have a self-implementing mechanism. 
 
The Agreement 
 
NAIROBI 00002865  002 OF 003 
 
 
------------- 
 
¶4.   On December 17 President Kibaki and Prime Minister 
Odinga signed an agreement in principle to implement the 
report's recommendations, just beating the 60-day deadline. 
The agreement assented to the formation of the Special 
Tribunal and tasked a Cabinet subcommittee with drafting 
legislation to establish the tribunal.  It further holds that 
any public official charged by the tribunal will be suspended 
until the case is resolved and that those convicted by the 
Special Tribunal will be barred from holding elective or 
appointed public office.  Kibaki and Odinga also agreed to 
undertake major police reforms, including the establishment 
of a independent civilian oversight authority for police. 
 
Kofi Annan Welcomes 
The Agreement 
------------------- 
 
¶5.  On December 19, Kofi Annan issued the following statement 
welcoming the agreement.  To follow is a text of his 
statement. 
 
Begin text: 
 
I am pleased that President Mwai Kibaki and Prime Minister 
Raila Odinga have signed an agreement for the implementation 
of the recommendations of the Commission of Inquiry into 
Post-Election Violence (CIPEV).  The implementation of 
CIPEV's proposals will go a long way towards ending the 
culture of impunity and spearheading much-needed 
institutional reforms in the country.  I note that the 
Parties to the agreement will now prepare and submit to the 
National Assembly a draft bill for the establishment of the 
Special Tribunal for Kenya.  I trust that the bill will 
reflect the spirit of CIPEV's proposals and incorporate all 
its key provisions.  I urge Kenya's leaders to redouble their 
efforts to implement the CIPEV recommendations and to respect 
the suggested timeline for action. 
 
Equally important is continued progress on electoral reform. 
In this regard, I am pleased that the National Assembly has 
passed the Constitution of Kenya Amendment Bill, 2008, 
setting the stage for the implementation of the crucial 
reforms recommended by the Independent Review Commission on 
the 2007 elections.  Moving forward on the reform agenda is 
imperative for building a more stable and democratic Kenya. 
 
End text. 
 
Next Steps 
---------- 
 
¶6.  The next deadline is that Parliament must pass 
legislation establishing the Special Tribunal on or before 
January 31, 2009.  Parliament adjourned for holiday recess on 
December 18.  It would normally resume in March 2009. 
However, President Kibaki is likely to recall Parliament in 
late January to debate and pass legislation before the 
deadline expires. 
 
¶7.  Both Kibaki and Odinga have exerted strong leadership on 
their followers to implement the Waki Report.  Their 
leadership, and the possibility that the ICC might assume 
jurisdiction, has forged a consensus to implement the Waki 
Report.  The Cabinet subcommittee mentioned in the agreement 
was formed in November and, chaired by Deputy Prime Minister 
Musalia Mudavadi, has completed its implementation plan.  The 
consensus reached accepts international participation in the 
trial and appeals court, but Kenyans would act as chief 
judges in both.  Regarding the selection process, the 
government position is that President Kibaki would make 
appointments of Kenyans judges in consultation with the Prime 
Minister and the Chief Justice of Kenya.  International 
appointments and the appointment of the Kenyan deputy 
prosecutor would be made by President Kibaki on the 
recommendation of the African Union Panel of Eminent Persons, 
an ad hoc body headed by Kofi Annan. 
 
¶8.  Kibaki and Odinga had hoped that Cabinet would adopt the 
plan and that Parliament would pass the legislation before it 
adjourned last week.  However, these plans were delayed by 
parliamentary wrangling over a constitutional amendment to 
disband the Electoral Commission of Kenya, which prevented 
Cabinet from considering the plan. 
 
 
NAIROBI 00002865  003 OF 003 
 
 
POLICE REFORM 
------------- 
 
¶9.  The agreement also agrees in principle to implement the 
Waki Report's implementation on police reform.  This includes 
a top-to-bottom review of tactics, weapons, and use-of-force 
doctrine of Kenya's police forces, as well as establishment 
of an independent oversight authority which would be 
empowered to take public complaints about police behavior and 
to discipline police officers. This is a massive task and its 
implementation is not tied to a fixed timeline. 
 
 
COMMENT 
------- 
 
¶10.  The signing of the agreement represents another positive 
step in implementation of the reform agenda.  It appears that 
much of the groundwork to establish the Special Tribunal has 
been laid.  Annan has blessed the agreement and his call for 
the parties to respect the timeline for implementation of the 
Waki Report's recommendations sends a clear signal that Kenya 
will not, as many local politicians hoped, be allowed to 
delay implementation.  We expect Kibaki to reconvene 
Parliament in mid-January to debate the legislation.  The 
Ambassador, in his private meetings and public comments over 
the past months (Ref E), has strongly urged the Grand 
Coalition government to take action as well as expressed 
confidence they would fully implement the Waki Commission 
recommendations.  We will continue to stress the importance 
of establishing the Special Tribunal and of reforming Kenya's 
police forces at the highest level of government.  End 
Comment. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
RANNEBERGER