We, the undersigned Heads of Mission, have welcomed the Kenyan Government’s stated commitment to implement the Waki Commission’s recommendations, including the creation of a Special Tribunal. We also support the decision by the Panel of Eminent African Personalities to pass to the ICC information compiled by the Commission on suspected perpetrators of the post election violence. This decision demonstrates the determination of the international community to support accountability, justice and an end to the culture of impunity in Kenya.

The provision of this information to the ICC does not preclude the establishment of an independent Special Tribunal in Kenya. We continue to encourage the Kenyan Government and Parliament to do this urgently. To gain the confidence of the Kenyan public and to attract international support, such a tribunal will need to follow the Waki Commission’s recommendations and meet international standards.

In particular, a Special Tribunal will need to be independent and constitutionally protected, with significant international involvement, a strong witness protection system and autonomous funding provided by the Kenyan Government. A Special Tribunal will require guarantees for the independence of the prosecution and judges to decide whom to take action against, free from interference by any part of the Kenyan judicial or political system. Achieving this is essential for Kenya’s politicians to underline their commitment to ending impunity.

If however the Government is unable or unwilling to set up a Special Tribunal expeditiously, we urge the Government to refer the situation to the ICC in line with its commitment in the joint statement of 3 July. Meanwhile, we are confident that the ICC will continue its initial work with a view to carrying out thorough investigations, and when warranted by the evidence, prosecutions of those most responsible for the post-election violence.

It is important to recognise that the ICC could only prosecute a limited number of those responsible for post-election crimes. Action by the ICC to begin formal investigations, will not absolve the Kenyan Government of responsibility to provide wider justice for all those affected by the violence.

All European Union diplomatic missions accredited in Kenya: Austria, Belgium, Cyprus, Czech Republic, Denmark, European Commission Delegation, Finland, France, Germany, Greece, Hungary, Italy, Netherlands, Poland, Portugal, Romania, Slovakia, Spain, Sweden (EU Presidency) and the United Kingdom.
And the diplomatic missions of Canada, Japan, Norway, Switzerland and the United States of America.