Justice Philip Waki, a retired judge and respected senior legal figure, led the Commission of Inquiry into the Post-Election Violence from 2008 to 2009. The Waki Commission was Kenya's primary domestic investigation into the 2007-08 violence. Its mandate included documenting incidents of violence, identifying perpetrators and patterns of violence, determining whether violence was spontaneous or organized, and recommending accountability mechanisms. The commission conducted field investigations across Kenya, interviewed thousands of witnesses, examined crime scenes, reviewed hospital records, and gathered evidence. The resulting report, released in 2008, was the most comprehensive documentation of the violence produced within Kenya and formed the evidentiary base for subsequent accountability efforts, including the ICC investigation.
The Waki Commission's findings were stark. The report documented violence as organized and coordinated at high levels, not spontaneous ethnic clashes. It identified patterns suggesting that senior politicians had mobilized ethnic militias through financial incentives and strategic direction. The report named individuals suspected of organizing violence, including sitting government officials and opposition leaders. The commission documented the scale of displacement (600,000), death toll (1,100+), and sexual violence (900+ cases). The Waki Report became an authoritative historical record, cited by international investigators and human rights organizations.
Crucially, the Waki Commission prepared a sealed envelope containing names of suspected perpetrators of crimes against humanity. This envelope was given to Hans Corell, an envoy of Kofi Annan, with explicit instructions: if Kenya failed to establish a credible domestic tribunal to investigate and prosecute PEV crimes within a specified timeframe, Corell was to transmit the names to the International Criminal Court. This instruction transformed the Waki Report into a mechanism for triggering international prosecution if domestic accountability failed. By late 2009, it became clear that Kenya would not establish the required tribunal, and the envelope was transmitted to the ICC. The ICC then opened a formal investigation in 2010.
The Waki Commission's methodology was sound by the standards of commission of inquiry work. Investigators deployed to each affected region, conducted interviews with victims and perpetrators (where willing), examined physical evidence, and cross-referenced accounts to establish what happened. The commission faced challenges: insecurity in some regions limited access, witnesses feared retaliation if they testified, and some perpetrators refused cooperation. Political pressure also affected the commission; the Kibaki government, aware of its own potential culpability, sometimes obstructed investigations. However, despite these constraints, the commission produced a report that investigators across Kenya and internationally regarded as credible and comprehensive.
The Waki Report became controversial not for its findings but for the question of what would happen next. Conservative political figures worried that implementing the report's recommendations (establishing a tribunal, prosecuting named individuals) would destabilize the Grand Coalition government and risk renewed violence. The grand coalition government, formed in February 2008, depended on accommodation between Kibaki and Raila, both of whom were implicated (to varying degrees) in organizing or failing to prevent violence. Prosecuting sitting government officials could rupture the coalition. This political dilemma created a situation where the most authoritative truth-telling mechanism (Waki) produced findings that were not acted upon.
By 2013, the Grand Coalition government ended, and Uhuru Kenyatta was elected president. The question of whether the Waki recommendations would be implemented became moot; with Uhuru as president, domestic prosecution of alleged violence organizers became politically impossible. The Waki Report thus became a historical document, authoritative and widely cited, but its original purpose (triggering domestic prosecution) was not fulfilled. Instead, the report's impact was to facilitate ICC prosecution, which had its own trajectory and eventual collapse.
See Also
Sealed Envelope ICC Collapse TJRC Impunity Victims and Reparations
Sources
- Kenya National Commission on Human Rights. "Report of the Commission of Inquiry into the Post-Election Violence in Kenya." Nairobi, 2008. Full report available at https://www.knchr.org/
- International Criminal Court. "Situation in the Republic of Kenya." The Hague, 2010. References to Waki Commission findings in prosecution briefs. https://www.icc-cpi.int/
- Moran, Mary. "Political Settlements and Constitutional Design." Journal of Eastern African Studies, Volume 7, Issue 3, 2013. Available at https://www.tandfonline.com/