Part of the Justice
Waki report on elections violence in Kenya
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
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.
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
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.
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.
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.
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.
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
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
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.
The Commission makes the following further recommendations:
The International Crimes Bill 2008 be fast-tracked for enactment
by Parliament to facilitate investigation and prosecution of
crimes against humanity.
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
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.
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.
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
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
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
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:
Involve a complete audit of the current police management,
structures, policies, practices and procedures.
Include extensive consultation with a wide variety of national
and international stakeholders.
Undertake extensive and comprehensive public consultations
Include an examination and consideration of applicable
international law and best practices
Include a thorough examination, review and revision of all
tactics, weapons and ‘Use of Force’ employed by the Kenyan
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.
Include the creation of a modern Code of Conduct
Include a complete revision of the Police Act
Incorporate a review of issues relating to the ethnic and tribal
balance and deployment within the Kenya Police Service.
Include an examination of the structures of the police including
the Senior Executive
Include the establishment of a Police Services Commission for
the Kenya Police.
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:
Enactment of an Independent Police Conduct Authority Act
Involve a complete review of the current police complaints and
disciplinary processes within the Kenya Police Service.
Include an examination and consideration of applicable
international law and best practices
Report directly to parliament through the Minister responsible
Work under the authority of its own Act and have sufficient
powers to properly investigate all police conduct issues.
The ‘Authority’ is to be a person qualified to be a judge of the
High Court Kenya
The ‘Authority’ is to have the power to investigate public
complaints against police and ‘own motion’ conduct issues.
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
Have the legislative power to make recommendations for change to
policing policy, practices and procedures.
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:
Commence with the command, responsibility and accountability for
every aspect of the Administration Police transferring to the
Commissioner of Police with immediate effect.
Effectively uncouple policing from the Provincial Administration
Enable a combined police organ to function in an unencumbered
fashion exercising constabulary independence in performing its
Ensure that all police services adopt an operational role
independent of executive influence.
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:
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
Be comprised of a team of four experts including Kenyan and
international specialists in transformational change, strategic
auditing and policing.
Source the international experts from likeminded common law
Have the PRG established and begin their work immediately with a
mandated duration of 6 months.
Have the PRG report directly to the Minister of Justice
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.
Ensure that the PRG identify, early in the process, appropriate
‘milestones’ or ‘check points’, at which time meaningful interim
reports may also be generated.
Provide that the PRG be able to make interim and immediate
recommendations for reform and change at any stage during the
six months process.