Part of the Justice Waki report on elections violence in Kenya

CHAPTER THIRTEEN

Recommendations

This chapter contains the Commission’s recommendations that relate to the State Security Agencies and to issues of impunity. The discussion, findings and conclusions that the recommendations are based upon are fully laid out in the preceding chapters.

In accordance with the established Terms of Reference regarding recommendations for measures to eradicate impunity, legal and administrative measures and following an investigation into the actions and omissions of the State Security Agencies, the Commission makes the recommends appearing below. These recommendations should be implemented under the auspices of the Panel of Eminent African Personalities acting in consultation with the President and the Prime Minister of Kenya, with the full co-operation of Parliament, the Judiciary and the office of the Attorney General as more specifically described below.

1. A special tribunal, to be known as the Special Tribunal for Kenya be set up as a court that will sit within the territorial boundaries of the Republic of Kenya and seek accountability against persons bearing the greatest responsibility for crimes, particularly crimes against humanity, relating to the 2007 General Elections in Kenya. The Special Tribunal shall achieve this through the investigation, prosecution and adjudication of such crimes.

2. The Special Tribunal shall apply Kenyan law and also the International Crimes Bill, once this is enacted, and shall have Kenyan and international judges, as well as Kenyan and international staff to be appointed as provided hereunder. 

3. In order to fully give effect to the establishment of the Special Tribunal, an agreement for its establishment shall be signed by representatives of the parties to the Agreement on National Accord and Reconciliation within 60 days of the presentation of the Report of the Commission of Inquiry into the Post-Election Violence to the Panel of Eminent African Personalities, or the Panel’s representative. A statute (to be known as “the Statute for the Special Tribunal”) shall be enacted into law and come into force within a further 45 days after the signing of the agreement.

4. The date of commencement of the functioning of the Special Tribunal shall be determined by the President, in consultation with the Prime Minister, the Chief Justice, the Minister for Justice, National Cohesion and Constitutional Affairs and the Attorney-General, within 30 days after the giving of Presidential Assent to the Bill enacting the Statute.

5. If either an agreement for the establishment of the Special Tribunal is not signed, or the Statute for the Special Tribunal fails to be enacted, or the Special Tribunal fails to commence functioning as contemplated above, or having commenced operating its purposes are subverted, a list containing names of and relevant information on those suspected to bear the greatest responsibility for crimes falling within the jurisdiction of the proposed Special Tribunal shall be forwarded to the Special Prosecutor of the International Criminal Court. The Special Prosecutor shall be requested to analyze the seriousness of the information received with a view to proceeding with an investigation and prosecuting such suspected persons.

6. The Bill establishing the Special Tribunal shall ensure that the Special Tribunal is insulated against objections on constitutionality and to that end, it shall be anchored in the Constitution of Kenya. 

10. The Bill establishing the Special Tribunal shall further provide for:

i. The jurisdiction of the Tribunal which shall include the jurisdiction to adjudicate over the criminal cases brought against persons bearing greatest responsibility for serious crimes, particularly crimes against humanity, related to the 2007 post election violence.

ii. The right of appeal from the decisions of the Trial Chamber to the Appeals Chamber of the Special Tribunal.

iii. The ouster of the Jurisdiction of ordinary courts from the in relation to the proceedings of the Special Tribunal.

12. The Bill establishing the Tribunal shall provide for sufficient authority and independence to the Special Tribunal to conduct investigations and shall in particular provide that:

• The Special Tribunal shall have authority to recruit and control its own staff, including such staff, working under the Prosecutor, as will be necessary to conduct prosecutions;

• The head of investigations and not less than three other members of the investigation team shall be non-Kenyan so as to provide an independent approach to the investigation function of the Tribunal.

• The investigations team shall report to and work under the general direction of the Prosecutor.

13. The Special Tribunal shall take custody of all investigative material and witness statements and testimony collected and recorded by this Commission. 

Other Recommendations

The Commission makes the following further recommendations:

1. The International Crimes Bill 2008 be fast-tracked for enactment by Parliament to facilitate investigation and prosecution of crimes against humanity.

2. The Witness Protection Act 2008 be fully utilized in the protection of all witnesses who will need such protection in the course of investigation, prosecution and adjudication of PEV cases.

3. The Freedom of Information Bill be enacted forthwith to enable state and non-state actors to have full access to information which may lead to arrest, detention and prosecution of persons responsible for gross violations.

4. All persons holding public office and public servants charged with criminal offences related to post-election violence be suspended from duty until the matter is fully adjudicated upon.

5. Upon conviction of any person charged with post-election violence offences of any nature, such persons shall be barred from holding any public office or contesting any electoral position.

In relation to overall operational and service delivery issues emanating from the 2007 elections period in Kenya.

The development and application of the National Security Policy, as articulated in the Kenya National Dialogue and Reconciliation Agenda Item 4 and the First Medium Term Plan (2008-2012), be finalised as a matter of urgency, and The Conflict and Disaster Early Warning and Response systems, articulated in the First Medium Term Plan (2008-2012), are developed and implemented as a matter of priority, and 

The State Security Agencies develop, under the oversight of the NSAC, joint operational preparedness arrangements (to be conducted at least once every two years) including desk top scenarios and full operational exercises to assist in their readiness for dealing with high level security and emergency situations, and

The joint security operational preparedness arrangements comprise all key participants including, in the case of elections, the ECK, the Ministry of Health, and the Ministry of State for Special Programmes (Disaster Management), and

The NSAC take a greater leadership role in determining security priorities, focusing on preventive strategies and actions, and providing clear direction to State Security Agencies, and

The NSAC develop and implement security review arrangements to ensure that agencies’ performance in security events such as the PEV are assessed, lessons learned and appropriate improvements and modifications to standard operating procedures are completed, and

The NSAC immediately conduct a full review of the functionality of the committees that make up the KSIM to determine their relative performance during the Post Election Violence, and

Where improvements are identified they are implemented immediately, and The results of the review are made public within 14 days of completion, and Immediate steps are taken to put in place independent oversight arrangements of the operation of the NSIS, and

The NSIS shall be required to report annually to parliament and the annual report to be made public. 

Specific Recommendations for the Police

1. A comprehensive reform of the Kenya Police Service and Administration Police be undertaken. This reform shall be

initiated immediately and shall:

a. Involve a complete audit of the current police management, structures, policies, practices and procedures.

b. Include extensive consultation with a wide variety of national and international stakeholders.

c. Undertake extensive and comprehensive public consultations

d. Include an examination and consideration of applicable international law and best practices

e. Include a thorough examination, review and revision of all tactics, weapons and ‘Use of Force’ employed by the Kenyan Police.

f. Explore international capacity building possibilities for policing in general with a specific focus on criminal investigations, community based policing and information collection analysis and dissemination.

g. Include the creation of a modern Code of Conduct

h. Include a complete revision of the Police Act

i. Incorporate a review of issues relating to the ethnic and tribal balance and deployment within the Kenya Police Service.

j. Include an examination of the structures of the police including the Senior Executive

k. Include the establishment of a Police Services Commission for the Kenya Police.

l. Investigate and make recommendations relating to any other areas of policing and law enforcement that are, in the opinion of the Police Reform Group (PRG), relevant to the improvement of policing services in Kenya. 

2. An ‘Independent Police Conduct Authority’ is established with the legislative powers and authority to investigate police conduct and provide civilian oversight. Establishment will be undertaken in the following way:

a. Enactment of an Independent Police Conduct Authority Act

b. Involve a complete review of the current police complaints and disciplinary processes within the Kenya Police Service.

c. Include an examination and consideration of applicable international law and best practices

d. Report directly to parliament through the Minister responsible

e. Work under the authority of its own Act and have sufficient powers to properly investigate all police conduct issues.

f. The ‘Authority’ is to be a person qualified to be a judge of the High Court Kenya

g. The ‘Authority’ is to have the power to investigate public complaints against police and ‘own motion’ conduct issues.

h. Legislation will require that some, more serious policing actions ‘must’ be reported to the Authority i.e. allegations of corruption, deaths in custody, serious injury and police related shootings.

i. Have the legislative power to make recommendations for change to policing policy, practices and procedures.

j. The ‘Authority’ is to have retrospective powers to deal with historical serious misconduct.

3. The Administration Police is integrated into the Kenya Police Service creating a single police entity. The integration shall:

a. Commence with the command, responsibility and accountability for every aspect of the Administration Police transferring to the Commissioner of Police with immediate effect.

b. Effectively uncouple policing from the Provincial Administration structure. 

c. Enable a combined police organ to function in an unencumbered fashion exercising constabulary independence in performing its functions.

d. Ensure that all police services adopt an operational role independent of executive influence.

e. Ensure that a new and contemporary police entity is led by professional police officers.

4. All of the reforms articulated in the recommendations immediately above relating to the Police be initiated immediately and shall:

a. Be undertaken and completed by a panel of policing experts (Policing Reform Group - PRG) who will work completely independent of but alongside the Kenya Police Service and Administration Police.

b. Be comprised of a team of four experts including Kenyan and international specialists in transformational change, strategic auditing and policing.

c. Source the international experts from likeminded common law countries.

d. Have the PRG established and begin their work immediately with a mandated duration of 6 months.

e. Have the PRG report directly to the Minister of Justice

f. Furnish progress reports to the Government of Kenya and the African Union, regarding the conduct and findings of the PRG and to provide a final report within two (2) months of the end of the mandated period, unless otherwise agreed.

g. Ensure that the PRG identify, early in the process, appropriate ‘milestones’ or ‘check points’, at which time meaningful interim reports may also be generated. 

h. Provide that the PRG be able to make interim and immediate recommendations for reform and change at any stage during the six months process.