A fresh move is underway to recall the Waki envelope and undermine its use as evidence in the International Criminal Court. Yesterday four Kenyans presented a petition to President Kibaki at State House to “call for and receive the full record” of the Waki commission and the envelope containing the names of 40 suspects believed to be most responsible for the violence after the flawed December 2007 election. The four were alleged to have attended a Mungiki meeting at State House on November 26, 2007 which was part of the evidence presented by ICC chief prosecutor Luis Ocampo against Deputy Prime Minister Uhuru Kenyatta and former public service boss Francis Muthaura.
The group was led by Yvonne Khamati, Kenya's deputy head of mission to Somalia, and included former student leader Joseph Kioko, publisher Evans Gor and youth leader Patrick Ngatia. The petition was handed over to Kibaki's private secretary Prof Nick Wanjohi and acting public service boss Francis Kimemia at State House. “We beseech you to call for and receive the full record of the proceedings taken during the CIPEV including the Commission’s report and the full contents of the envelope handed over to His Excellency Kofi Annan,” the petition said.The four also wants Kibaki to instruct Attorney General Githu Muigai to conduct a full review of the Waki commission and advise on whether their rights “were violated or continue to be violated by application of the report.”
Their petition drafted by lawyer Nderitu Mureithi argues that Waki contravened the Commissions of Inquiry Act by failing to give them a chance to exonerate themselves and for refusing to hand over the full report including the envelope to the president. “The significance of this petition, if granted, would be to receive and open up the Waki envelope. It would also pave way for us to sue both the source and recipient of the envelope, that is Justice Waki and his excellency Kofi Annan, and to stop ICC from relying on this kind of evidence,” Khamati later told the Star.
The Waki report was delivered to President Kibaki on October 15, 2008. Waki passed a secret envelope with the names of individuals believed to bear greatest responsibility of the poll violence to Kofi Annan, the lead mediator of the Kenyan conflict. Annan later sent the envelope to the ICC after the coalition government failed to set up a local tribunal to probe the chaos as recommended by Waki. Khamati's group now claim that they only discovered that Ocampo relied on adverse evidence against them when the ICC confirmed charges against four Kenyans in January.
Confirming charges against Muthaura and Uhuru, the ICC pre-trial judges said there was considerable evidence that Mungiki attended a meeting with the suspects and President Kibaki. “We have carefully studied all reports produced by various institutions relating to the PEV, and we verily believe that the source of the said evidence was the proceedings taken before the CIPEV,” the petitioners. They add that they believe their names were in the envelope and say they are “fearful” of the ongoing process at the ICC.