Kriegler Reservations

THE KENYANS FOR PEACE WITH TRUTH AND JUSTICE

THE NATIONAL CIVIL SOCIETY CONGRESS

PRESS RELEASE

THE PROGRESS OF THE MEDIATION PROCESS AND THE POST-ELECTORAL COMMISSIONS OF INQUIRY

“The Kriegler Commission must faithfully fulfil its mandate”

Nairobi, September 16, 2008 : Kenyans await the imminent release of the Independent Review of the Elections Commission (IREC) report to His Excellency the President as well as to His Excellency Kofi Annan, the chair of the African Panel of Eminent African Personalities that crafted the National Accord.

However, that wait is tinged with reservations. Reservations informed by the long and disappointing experiences with commissions of inquiry which never fulfilled their mandates or whose recommendations were never implemented. In addition the conducting of the inquiry and the public pronouncements of its chairman, Justice Johann Kriegler have fuelled public scepticism about the likely quality and impact of findings and recommendations emerging from this Commission of Inquiry. In all fairness, Kenyans must wait and hear what Justice Kriegler and his colleagues have to say. But we wait in the consciousness of the historical significance of this report and of the heavy negative consequences that could attend an insufficient fulfilment of IREC’s mandate.

The 2007 General Election in Kenya was, arguably, the most closely contested ever. The consequences of that election nearly tore the country apart.

Many Kenyans quickly came together upon the eruption of violence to seek peace. One such group stressed that achieving peace alone would not be sustainable without the telling of Truth and the search for Justice. This is how a group of civil society organizations and individuals evolved into the Kenyans for Peace with Truth and Justice (KPTJ). We are joined on our concerns by the National Civil Society Congress (NCSC).

We still do seek truth, which we believe will only return Kenya to durable stability and peace if it is told and known. Electoral truth, truth on the processes, voting and tallying truth, as well as the truth of the roles played by individuals as well as institutions must be told.

KPTJ and NCSC also seek justice for the people of Kenya. Electoral justice will, in our view, be the foundation of growth in democracy and freedom. This justice must include the final determination of what exactly happened to the ballot and who may have won the election insofar as this can credibly be ascertained.

We, too, seek justice for the people that were violently deprived of their lives, livelihoods and property. We hope that the Internally Displaced Persons shall have their share of justice through the report of the Commission on Post-Election Violence (CIPEV). We deplore the continuing suffering of the IDPs and condemn the inadequate attention which is being paid to finding speedy and sustainable resolution of their plight.

In order to heal itself, Kenya accepted a grand coalition government, which resulted from the Kofi Annan led mediation process. In addition, the abovementioned commissions, IREC and CIPEV, were set up to deal with outstanding issues.

The mandate of the Independent Review Commission includes the investigation of ALL aspects of the 2007 presidential elections and the making of findings and recommendations to improve the electoral process.

We do expect that IREC shall provide a faithful report that will, among other things, do the following:

• Substantively and conclusively note the accountability function of the Electoral Commission of Kenya. This will include clear findings on what the ECK did wrong, who did wrong, what ECK failed to do right, what it could have done better and its responsibility, and that of individual officials, for the aftermath of the elections.
• The Commission should clearly identify the culpable parties for the electoral fiasco that nearly brought the country to its knees. This should include specific findings on individuals, political parties, candidates, state agencies, security agencies and any other parties. We expect that IREC will indeed proffer an answer as to what exactly went wrong with the elections and who had the greatest responsibility for the disaster that happened to Kenya. We seriously expect that the Independent Review Commission will not pass the buck but precisely locate it.
• The IREC will have to be acutely aware that, in the event Kenyans feel that the commission has not fully and effectively discharged its mandate, it will have endorsed impunity and diminished faith in elections as an essential tool for democracy. This will risk being considered a perpetuation of the betrayal that led to the loss of lives and property following the elections.

Whereas we are hopeful that the IREC will acquit itself in respect to the foregoing, we are aware that the commission faces some key challenges. These include:

• The Commission’s apparent narrow interpretation of its mandate to exclude the possibility of credibly identifying who may have won the presidential election. We have stressed in all our public statements that this may be extremely difficult, if not impossible, if the records have been extensively manipulated. However any professional and conscientious forensic audit of the documentation should at least provide guidance on what really happened and who was culpable. Judge Kriegler’s apparent public fudging on this mandate is in contrast to the Kenya National Dialogue and Reconciliation agreement, which said that the IREC “would be mandated to investigate all aspects of the 2007 General Election”. One of IREC’s terms of reference enjoin it to “investigate vote counting and tallying with special attention to the presidential poll to assess the integrity of the results”.
• The Commission’s highly questionable definition of the primary stakeholders of the inquiry process to be political parties, the ECK and the government.
• Since the IREC’s investigation was based on possible mischief by the political actors and the ECK their above-mentioned privileging by the commission and the reluctance to allow civil society to play a more active role in the proceedings of the inquiry was regrettable since IREC’s independence could come into question, and thus reduce the credibility of its report.
• In contrast, and without prejudice as to its eventual findings and recommendations, the Commission of Inquiry into Post-Election Violence (CIPEV) under Justice Waki has worked well with civil society. We believe that this has had a positive impact on some of the testimony received and the outreach that CIPEV could attain.

In conclusion, the KPTJ and NCSC fully expect the Commission to be faithful and forthright to its mandate and to the people of Kenya so as to safeguard democracy and the fidelity of the electoral system and responsibly use the considerable public resources allocated to it.

We also urge the President to immediately publish the report to its true principals, the Kenyan people, so that Kenyans can evaluate it, respond, and take the necessary steps to heal and reconstruct their nation.

The same demand will be made over the CIPEV headed by Justice Waki, which is also soon completing its report.

Signed:

Gladwell Otieno

Kenyans for Peace with Truth and Justice

Njeri Kabeberi

National Civil Society Congress