Water Minister Charity Ngilu has challenged President Kibaki to explain his role in the alleged violence masterminded from State House.

Mrs Ngilu, in a scathing attack, said the President caused the problems that befell Kenya; he reneged on many agreements and democratic progress Kenyans had made.

"Kibaki failed where former President Moi succeeded. We would not be debating Waki and Kriegler reports if he respected the Inter-Parties Parliamentary Group agreements," Ngilu said.

In breaking ranks with fellow politicians calling for amnesty and a tribunal to try the violence suspects, Ngilu said Kenyans were missing the point.

In the hardest hitting statement from a Cabinet minister so far, Ngilu cautioned Kenyans to tread carefully by not apportioning blame.

 Adongo Ogony is slightly more coherent, while remaining nicely representative:

From the stats it seems to me that most killings were by cops and security agents. Do you think those murders were planned and deliberate? Of course they were. Those responsible for the security apparatus at the time have blood all over them and should be fired and prosecuted. The biggest criminal here is John Michuki and president Mwai Kibaki. They not only sanctioned murder of citizens they also failed to discharge their duties to protect Kenyans. That is the elephant in the tent but I suspect you might not be able to see that. What a pity.

And - again, nicely representative of ODM argument - we have Onyango Oloo's defence of Ruto here:

The 2007 election campaign was one of the most eagerly, avidly and widely covered political events in Kenyan history. William Ruto had already been assigned the role of Lucifer aka Obel Sibuth by ODM's PNU opponents.

It is simply inconceivable that William Ruto would have uttered the words ascribed to him without any of the leading pro PNU media organs- KBC, the Nation Media Group or the People, not to speak of the Royal Media stable not to loudly repeat these allegations on the radio, on television or on the front pages of the daily newspapers.

Given Ms. Ngilu's self-refutation, the thing to do is to begin with Adongo's argument - such as it is. The conclusion wanted is that Kibaki is responsible for the entire mess. It must be assumed that Adongo thinks that showing that government forces are responsible for most deaths suffices to prove the claim; an assumption at once both rubbish and telling.

But let that pass. The stats show no such thing. There were 405 recorded deaths by gunshot. Waki assumed that all deaths by gunshot came at the hands of the police, and that none of the 732 other recorded deaths came at the hands of the police. (cf. Waki 2008: 331 "Apart from the 405 killings directly linked to the police, the remaining 732 deaths were as a result of citizens killing fellow citizens due to the political stand-off at the time of the killings or for other unknown reasons.")

732 is greater than 405, as even ODMers will admit; it follows that even on Waki's assumptions - the assumptions under which ODMers take it that their case is made - the statistics do not support the conclusion. Waki's assumption is almost certainly false both ways. There's reasonably good evidence that Rift Valley ODMers had managed to get their hands on guns:  here's a report from the Guardian demonstrating that ODM-supporting prison guards in Naivasha shot at least ten Gikuyu dead. There's good evidence that government employees - in RVP, Western and elsewhere - participated in the PEV without the aid of firearms:  see the KNCHR report's schedule of pepetrators for names such as Steven Ng'etich, Joseph Rotich, and Luseno Lusaba.  

Less obviously, the assumption that all acts of the police are acts for which government is responsible is simply untenable. As a glance at both the Waki and the KNCHR's schedule of perpetrators shows, a significant proportion of the violence followed either police negligence in defiance of superior officers, or actual participation by police officers (and other civil servants) in looting and other violence. Given the identity of the victims of these attacks, it is obvious that these government officers were acting directly contrary to their orders - many of them for obvious ethnic-solidarity reasons. No government responsibility follows in these cases.  

Again, the state has the right to apply lethal force in the protection of its citizens' lives and property; it follows that the fact of deaths at the hands of state agents doesn't show that those deaths were murders. But that right is only properly exercised by those in the right chain of command; clearly, those who had gone rogue were no longer in the right chain of command.

Having weakened the attempt to shift responsibility from ODMers to the government, it's worth taking on the false equivalence implied in condemning (the then) government and ODMers indifferently.

The obvious underlying idea - check out Adongo's stuff above about responsibility - is this: If a person in a position of responsibility has a duty to prevent another person in his charge from doing A, and the person in his charge does A, and he accomplished A because of the responsible person's omission of duty, then the responsible person is liable for his charge's doing A.

(It's worth noting that it hasn't been established that the mass murder in RVP  was accomplished because of responsible authority's lack of judgement or negligence, but let's assume that's true for argument's sake.) First, the state has the right to apply lethal force in the protection of its citizens' lives and property; it follows that the fact of deaths at the hands of state agents doesn't show that those deaths were murders.

(1)    The reasoning is rubbish - parents (and politicians, and clergy) have a duty to prevent those in their charge from mass murder and ethnic cleansing; since ODMer parents failed to do so, it follows, by Adongo's own logic, that there ought to be mass arrests of the parents of ODMers. The same argument runs with clergy plugged in. That consequence is self-evidently nuts.

(2)    But in any case, it's clear that Adongo and others simply don't believe this, since they've argued elsewhere that Cpl. Kirui should be tried. But if he should be tried, then it follows that he is (at least partially) responsible for his acts, in which case ODMers are too. If, alternatively, ODMers argue - and they do! - that he, and his bosses, are jointly responsible for their acts, then that also applies to ODMers and their leaders. Any plausible reasoning under which Kirui should be tried leads directly to the claim that ODMers can also be tried for their part in the mayhem.)

(3)    It really ought to be obvious that failing to prevent a murder and (planning, paying for, or committing) murder have distinct moral weight - voluntary positive acts carry greater moral weight than do omissions.

(4)    Even assuming that the police ought to have stopped ODMers and didn't, the police inherit responsibility for ODMer mayhem only if exactly one agent can be responsible for a given act. That's not true: two people may jointly be responsible for a given act (as witness Adongo's blaming Michuki and Kibaki above.) If the police inherit ODMer responsibility, they would do so in virtue of (i) their duty to prevent those in their charge from breaking the law, and (ii) their power to do so. But (i) and (ii) are also true of ODM's leaders; it follows that they too are culpable for the doings of their supporters. Since, for reasons internal to the psychology of the ODMer, that's a consequence they're unwilling to admit, the argument that leads to it - namely that the incompetence, malice and violence of the authorities excuses ODM's planning, funding and perpetration of mass murder - needs to given up.

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