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Waki Commission – options beyond ICC/tribunal?

My two cents on options for civil society…

First, many organizations (some of who testified before Waki) have powerful testimonials / evidence etc. from that period…I suggest bringing these back to the forefront via media etc- personalize the stories (so that it is not become just an ODM vs PNU story)…young lives were snuffed out, parents who lost a child; victims of police violence; victims of sexual violence, IDPs who are still being neglected and so on. Most of this information is sitting in fancy reports that the average Kenyan has not seen…remind people of what happened, put a human face to what happened…it might be a controversial strategy as far as “inflaming the situation” but frankly it seems like in Kenya the only way to avoid inertia when it comes to political change is a crisis.

Second, why wait for a truth and reconciliation law to be implemented? Maybe start a parallel process led by civil society focused on communities – think a gacaca type process where the focus is on addressing the “smaller fry” as it werem but at the same time build pressure on the need for the big wigs to also also be subject to a process of some sort.

Third, what civil society can do is, if things to get to the stage of an ICC referral (and even for a local tribunal), is work to build a coherent case (think PR really) for why justice is necessary and why the process won’t be “costly” as far as reigniting tensions etc. and also help build a case that can stand up in court – if (big IF) Moreno and co. come knocking looking for answers civil society should be ready with CONCRETE stuff. Pressure must be sustained in a visible manner, maybe with a weekly action – think Mothers of Plaza de Mayo. Attempt private prosecutions, even though Wako will kill that story. Anything (but press conferences and workshops in hotels about the Waki report) to keep the pressure up. It is important to note that the ICC and all other UN-type options require one to first demonstrate the exhaustion of all domestic remedies.

Fourth, international options beyond ICC (hat tip Wangui for input!)
– Pursue procedure 1503 with the office of the UN High Commissioner of Human Rights, especially in the cases where violence was committed by the State apparatus e.g. police. It is a cumbersome process, but taken quite seriously by the UN. Resource-wise, I’m sure this could be pitched to law school clinics in Kenya and internationally for pro-bono assistance in putting a complaint together.
– For the gender-based violence, submit a complaint to the Commission on the Status of Women.

Any other thoughts out there?

11 comments to Waki Commission – options beyond ICC/tribunal?

  • Omozungu

    Re complaint to Commission on Status of Women
    Their website says:
    Scope of the Procedure
    The complaint, or communication, must either (1) allege a pattern of violations in a particular country or (2) identify a problem or problems facing women in several countries.

    Who Can Submit a Complaint : Individual victims of human rights violations and individuals who can identify a particular victim(s).

    Role of Advocates: NGOs may submit complaints, but have a very limited role in the proceedings

    Would they accept sexual violence during PEV a “pattern of violations”? Or chalk it up to a very particular context?

    Also, it would appear that NGOs in Kenya (only in Kenya? or women’s/human rights groups overseas?) could submit a complaint, but the victims would have to play a very active role if the complaints were to be investigated. Waki got 31 victims to testify. I wonder if FIDA, CREAW and others (WILDAF, COVAW) could get victims to be part of an international process?

    And: what about male victims? Most victims of sexual violence during PEV were women, but it appears that many men (who knows how many?) were assaulted as well – some by forced circumcision, some by penile amputation, some by sodomy. Would it be wise to follow Ndung’u’s strategy with the SOA 2006, in arguing that sexual violence affects men and women? (Thus making it not a “women’s” issue but a gender-neutral human rights issue.) Or does that reduce the larger point that women are victimized more than men, and that this is part of a larger, systemic state of relative powerlessness of women in Kenya (and elsewhere, for that matter)?

    If all goes well next Tuesday here in the US, Obama will be president – perhaps he can be called upon to pressurize Kenyan politicians, and give at least moral encouragement to civil society groups in Kenya.

    In any event, thanks Ory for pushing the issue.

  • Ory Okolloh

    Hi Omozungu:

    Given the anecdotes and evidence that was collected during that period, I think a fairly strong claim can be made that there was a pattern of violations – yes, there was a particular context for it – but given previous judgments e.g. in Bosnia one can argue that there was a pattern of targeting women specifically through political/ethnic violence.

    I think it would strengthen the case if NGOs in Kenya did the submission . I’m sure if they put their minds to it, they could get the victims involved they were quite vocal during the actual crisis, I’d be very disappointed if they go quiet now – Nairobi Hospital’s gender recovery center alone has many horror stories. To the extent that anonymity is preserved unlike e.g. having to testify in a local court, the barriers to getting victims to testify might be lower.

    I think, unfortunately, including male victims will reduce the larger point but there is no reason why reference to their experiences cannot be mentioned as well.

  • Omozungu

    Just finished the section on sexual violence in the Waki report. It makes for some pretty harrowing reading. A couple of points arise, in terms of a pattern of sexual violence:

    Some attackers explicitly stated to their victims that the rapes were politically motivated — i.e., that the victim supported the “wrong” side

    A number of police (regular, AP, GSU) sexually assaulted women as well. In at least one case, a woman was raped by police after they spotted a political poster on the wall in her house — she was a supporter of the “wrong” party. (At the same time, police have been guilty of sexual violence before: in the refugee camps in the north, during the sweep in Kibera [or Mathare?] for mungiki in June 2007 — so sexual violence by them constitutes both a long-term pattern, and an explicitly political pattern during PEV.)

    Re Bosnia: I haven’t followed Hague cases re Rwanda closely enough — have there similar judgments there? And wasn’t someone from DRC just indicted on charges of HR violations, including sexual violence?

    It might be worthwhile for someone to contact some of the NGOs to see if they have any plans in the works. I’ve not heard anything from Njoki Ndung’u, or have I missed it?

  • Thanks for concrete suggestions to this Ory. We DO NEED to get out of the press conference/workshop mode but I find civil society organisations here so entrenched within their own systems, that they are unable to crack out of it. Entities like Bunge need to be built upon. Civil Society needs to free itself from its NGO chains. I have always wanted to see a mass civil movement with tens of thousands taking to the streets holding candles, or whatever. It works in Korea and elsewhere – why not here?

  • Omozungu

    Can the police effectively investigate themselves? Can we expect justice from the inquest just set up by Ali to look into sexual violence during PEV, including that perpetrated by police? Fida is involved, and they were also involved in the Waki commission’s inquiries into sexual and gender-based violence (SGBV), and senior female officers are going to head up the inquiry. But it will be interesting to see how it plays out. I hope that Fida and others can act as watchdogs during the whole process, to make sure it is transparent and fair.

  • Ory Okolloh

    I meant FIDA et. al should be involved in drafting the complaint to the Commission on the status of women, and where feasible attempt private prosecutions if only to keep up the pressure.

  • Omozungu

    I wonder, however, if the police inquiry in PEV sexual violence would pre-empt such a complaint? Gov’t and/or police could claim it was already being dealt with.

  • Ory Okolloh

    I don’t think a police investigation of itself even remote qualifies as an adequate or even proper domestic remedy. If it would that would be just nonsensical.

  • Omozungu

    I’m looking at the witness testimony, and Ms. Obaso of CARE. She stated:

    UN Security council, resolution no. 1820 recognizes rape as a crime of war and Kenya is a signatory to this resolution

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