THE ICC yesterday began incorporating evidence gathered by the Waki Commission, with former commissioner Gavin Alistair McFadyen testifying on the quality of the final report.
McFadyen, a former assistant police commissioner in New Zealand, took to the witness stand in the case against Deputy President William Ruto and broadcaster Joshua Sang.
The Waki Commission was officially the Commission of Inquiry on Post Election Violence (CIPEV).
McFadyen testified on how he joined the commission, its operations, independence, credibility of witnesses and execution of mandate.
Judge Philip Waki chaired the commission while Pascal Kambale was the other commissioner.
Through McFadyen, prosecutor Antony Steynberg tabled the relevant chapters of the Waki Commission report that the prosecution intends to rely on.
He also tabled other Waki Commission-related documents, including investigation reports and the Serena Talks agreement on the commission’s formation.
â€œWe received a lot of cooperation from the Government of Kenya and various government agencies. But the time alloted to us was an obvious challenge. We recognized this before we started,â€ McFadyen told the court.
According to the Serena Agreement, the commission had a three-month mandate to probe the violence. CIPEV eventually got an extra month and two weeks before handing over its report to the then President Mwai Kibaki.
McFadyen testified that most of CIPEV’s sessions were public and widely reported in the media.
He said the commission did not focus on individual criminal responsibility as it was a non-judicial body under Kenyan law.
â€œWe were looking at a broader range of options other than in terms of individual criminal responsibility. Our report did not seek to place blame on anyone as we left this to other competent agencies,â€ he said.
According to the Serena Agreement, Kenyan leaders committed themselves to helping the commission undertake its functions with full freedom, independence and security.
They also committed to making all the information required available.
The agreement said the main findings of the report would be made public within 14 days of publication, â€œalthough certain aspects of the report or annexes may be kept confidential in order to protect the identity of witnesses or persons accusedâ€.
Former ministers Martha Karua, Mutula Kilonzo, Sam Ongeri, Moses Wetang’ula, Musalia Mudavadi, Ruto, Sally Kosgei and James Orengo signed the agreement while Oluyemi Adeniji witnessed it for the panel of eminent African personalities.
The report was handed over to Kibaki in November 2008, but a sealed envelope containing the names of key suspects in the organization of the violence was held back until the Grand Coalition Government formed a special tribunal.
The government signed another agreement to form the tribunal and implement the report.
McFadyen said civil society played a “significant role” in the commission’s work. He said he was aware that some of the reports generated by the civil society groups implicated specific people in the violence.
He said some of the names, including the name of Ruto and former minister Franklin Bett, mentioned in the Kenya National Commission on Human Rights report were also mentioned in the course of the CIPEV hearings by witnesses.
The prosecution tabled several chapters of investigation reports on Eldoret and Nyanza as exhibits. Also adopted are medical reports of reported deaths over the post-election crisis period provided by hospitals and statistics of internally displaced persons presented by the then Internal Security PS, Francis Kimemia.
McFadyen was asked whether the violence was spontaneous or planned. Ruto’s lawyer Karim Khan strongly objected to the question, but presiding judge Chile Eboe-Osuji overruled him. The hearing adjourned for the day before he could answer.
On June 11, the Trial Chamber V(A) judges admitted the Kiliku and Akiwumi inquiry commission reports, among other documents, as evidence against Ruto and Sang. The two commissions are predecessors of the Waki Commission but their reports were neither released nor implemented by the state.
The judges said the two reports were relevant as they showed a similar pattern to the alleged organization of the post-election violence.
“Further, the prosecution intends to demonstrate the criminal intent of Mr Ruto and Mr Sang with these reports,” the judges said.
Both reports reports are distinctive for the depth to which they went to identify the causes of the tribal violence and the people responsible.
The judges however refused to admit reports by the Kenya National Commission on Human Rights, the International Crisis Group and Human Rights Watch on the 2007 post-election violence, on hearsay grounds.
“The probative value of the document is limited by reason of lack of clarity on how the information was collected, the hearsay nature of much of the content and anonymity of the sources of information,” the judges said.
The hearing continues today.