Monday, January 14, 2008

My Way Out of this Mess

I think we have two problems in Kenya that we are in danger of confluencing. First is a political and legal problem occasioned by a stolen election. The second is a law-and-order issue.

The election results declared by the ECK chairman Samuel Kivuitu may or may not reflect the will of the Kenyan people. That uncertainty is at the heart of the current political crisis and needs to be cleared up. The only way is through a recount and retallying of the votes. How do we do that? Well, two weeks ago, in an exceedingly rare demonstration of cajones, Kenya's Attorney-General Amos Wako went against his boss, President Mwai Kibaki, and recommended a recount and further declared in his statement that we do not need a court order to do that. This statement stands in marked contrast to the claim by the Justice and Constitutional Affairs Minister Martha Karua that a recount can only be ordered by the courts. In my view, since Wako holds a constitutional office and Karua is a (possibly invalid) political appointee, his word carries much more weight than hers.

The issue is further complicated by Raila Odinga's and the ODM's refusal to go court citing the fact that the judges have been appointed by Kibaki himself and thus questioning their neutrality. I consider Raila's rejection of the court system to be hypocritical. He cannot pick and choose which parts of the constitution he wishes to obey. He cannot rely on certain provisions which back his case for the Presidency and reject those that complicate it. Our judges have always been appointed by the sitting President. The fact of their appointment is not enough to impugn their integrity. That said, it is manifestly unfair and self-serving for Kibaki to insist on this course of action considering that our courts take up to 5 years to dispose of election disputes (Kibaki's own case against Moi's 1997 election was decided in July 1999, after almost one-and-a-half years) and the overall politicization of the court process. The earlier mentioned case of Kibaki was thrown out on the basis that President Moi was not personally served with the petition despite the fact that (as reported by Kenyan Jurist) all the previous decisions, both local and from other commonwealth countries, with similar legislation, were clear that the petitioner had several options of service of the petition including service through the Kenya Gazette; and despite the judges acknowledging the factual accuracy of Kibaki's claim that presidential security consistently had denied him personal access to Moi. Kenneth Matiba's court challenge of Moi's 1992 electionwas similarly thrown out on the flimsy grounds that the petition was not signed by Hon Matiba himself but his advocate. On such technical decisions were Kenyans were denied the right to know what actually happened.

Though the results of any public retallying by an independent body (as recommended by Wako) would not automatically overturn the ECK's decision (only a court an do that), they could then form part of the evidence in a subsequent petition and the public pressure would probably insure against any shenanigans by the judges. Also, Parliament, when it convenes tomorrow, should urgently consider changes to our laws to place limits on how long courts can take to rule on election petitions, and to govern the inauguration of a new President to allow time for the petitions to be heard and determined.

As for the law-and-order issue, no political protest (of whatever magnitude) justifies ethnic cleansing, murder and looting. What we have in the Rift Valley and other parts of Kenya are thieves and killers masquerading as political protesters. I think the government should clamp down on that nonsense mercilessly (by for example immediately arresting and charging all those culprits who have been committing these acts in the full glare of TV cameras) while at the same time allowing space for legitimate and peaceful protest. It is sadly ironic that the very clique that used mass action so effectively against Moi in the 90s is now banning that very tactic. We have truly come full circle. The scenes of peaceful women demonstrators being dispersed with teargas when they were clearly posing no threats to the peace are deplorable (a caveat here: They really should have informed the Police of their intended march; we cannot uphold the law by abusing it). The called for mass action should be allowed to take place and the organisers should cooperate with police to ensure no violence occurs. That way, the police will truly be seen to be serving the Kenyan nation and not securing the interests of a would-be dictator holed up in State House.


Anonymous said...

points of order, garth!
1) if two separate issues are political(A) and legal (B); and the other law (C) and order (C), do you not see that B and C are similar, and probably the same, therefore you have gone full circle and failed to demonstrate the separation?
2) if you take wako's word over karua's because AG position is constitutional, are you merely being over-impressed by authority? would karua be wrong merely because she has no constitutional position? kivuitu did hold a constitutional position...yet the "constitutionality" of that position did not inure his rightness!
3) ODM is not against the judiciary coz its appointed bu Obaks! its becasue it is impartial. simple and straight. besides, the AG and chief justice are players on the gava side; on criteria of natural justice, how can you expect fair treatment in their hands, the very same who were on nigh to decidedly execute matters of significant legalistic, juridical and judicial consequence?????????

4) on what basis do you believe that there is only "one" cause of possible action, "the one by wako"? is it merely because you trust his authority? or is that the only cure provided in our current laws???????

5) do you not foresee possibility of a second option, an IPGG-like formula? the results of which can be rubber stamped by a sitting parliament? this can be pursued without breaking any laws, and without recourse to the judicial system that we trust not!

Gathara said...

1) Kibaki's stealing of the election and the murder and mayhem witnessed over the last two weeks are both criminal acts. However we should not use the former to justify the latter. Both need to be punished.

2)I am no fan of Wako but I think he got it right this time. The comparison with Karua arose from their differing interpretation of our statutes and I was simply pointing out that Wako's office gives his interpretation greater weight than Karua's gives hers. I did not mean to insinuate a constitutionally conferred infallibility on the part of Wako.

3)The ODM has had no qualms about using the court system on prior occasions (most notably when they tried to prevent the Safaricom IPO). The CJ and AG were the same guys we have today. If the ODM had a problem with them, they have a constitutionally prescribed manner for engineering their removal. That they never even raised the issue previously must surely cast a shadow on their claims.

4)I believe that only a court can overturn the ECK declaration. If any other legal means exist, please point them out.

5)A negotiated outcome would be most welcome. However, not only would it not address the crimes committed by Kibaki and his cohorts, the constitutional requirement that the President signs Parliamentary acts into law would necesitate a recognition of Kibaki as such. And this the ODM has so far refused to do.

I am just as revolted by Kibaki's actions as you are. However, I am committed to a peaceful and constitutionally acceptable way to right the wrong. Our laws anticipated this scenario and made provision for its resolution. Just because Kibaki violated the constitution and laws of our country does not mean we should do the same. What is the point of claiming to defend the republic, its laws and its democracy while at the same time employing methods that destroy these very things. In what way would we be different from him?

Anonymous said...

1) you ducked my point. but its ok. i had averred that what you claim are two separate issues are in fact inseperable.
2) check out the facts! dont take wako's words, coz of his authority.
3) you are introducing a logic of "conditionality" that since ODM used the courts b4, therefore they are obliged now! this is not a necessary conclusion, deriving from the fact that they used the courts b4. they may have then, and now have yet a just cause not to.
4) why do you keep begging the issue? plus "special pleading" where you omit significant info coz it would weigh against the position ur promoting. by going to court, per se, what justice (or remedy), pray i, may you possible get from the courts?

5)what you say here can be done by another gava ie "address the crimes committed by Kibaki and his cohorts, the constitutional requirement that the President signs Parliamentary acts into law" etc etc. any other prezo could.

get rid of obaks, then seek justice, coz u wont get it from obaks, the other way. but arguing that you fix "grievances caused by obaks", while obaks is at the reigns, is a pipe dream. if obaks stays, forget redress. if you get him out, you may get redress, i am not sure. but the LESSON that blatant and egregious acts of massive vote - theft a la obaks....comes at a prohibitively steep a price to the doer! then kenya might "learn" that "you have to prove your point. you have to convince people by force of reason. you have to respect democracy, at least to levels above MOI. hapana kuiba ama use kifua when things are thickest!"
you end very eloquently about two wrongs not making a right. BUT, obaks has left no choice...accept him or force him out. otherwise, WAIT for another "kenyan liberation". i cynically agree you could be right..maybe we just wait....the democary we so much aspire to may be given to us at some point.

Gathara said...

1) I do not see how I have ducked your question. The political issue is linked to the illegal Kibaki action. We have avenues to deal with those. The looting, rape and killing can be addressed separately since we have avenues of dealing with that too.

2)I have checked the facts and I am convinced he is correct.

3) Stop putting words in my mouth. Let the ODM demonstrate why the courts were legitimate avenues for settling disputes with the gava in December and they have ceased to be so now.

4) What info have I omitted? You are asking me to pre-judge the courts. You make claims about their partiality but have not bothered to provide us with any evidence. The courts have the power to overturn the ECK ruling and that is what we all want.

5)True, any other president could sign. But he would first have to be declared President. You are in a classic catch-22. Why would Odinga negotiate once he is President? Isn't that his objective?

Finally, what makes you think we will get justice from Raila once we depose Obaks? Did we get it from Kibaki when we chucked Mo1? Unless we change the system, then simply switching leaders will take us nowhere. We can chose to go the revolutionary way to do so. Ignore the current laws and rip up the constitution. My feeling is that that in that case the cure would probably be worse than the disease.

Anonymous said...

on 1, 2 i see no need to disagree further.
on 3) that conditionality does not hold from basic logic. eg, if i am against murder, and a hostage taker tells me to kill one hostage so he can release two others, i may hold on to my principle. however, if he said, kill one and all the 300 children are released, i guess i would kill rather than 300 be killed. so context counts, conditionality out the window. insisting that both contexts are similar and requiring of similar approaches is not convincing to me.
0n 4) sounds good not to pre-judge the courts, BUT you shall wait till jesus returns for an impartial judgment on the "presidency". case of unfounded optimism over experience! i think only you, martha karua, wako believe the courts can overturn obaks presidency.
5) this is not about raila replacing obaks. this is about "terminating blatant disenfranchisement of the highest ordre"; its about transformation; its not thatbrai8la will deliver, but we chart it all out so that even raila replaces obaks under very clear path towards a new constitutional order, with all caveats and relevant clauses for failsafe. the culture of individuals must be guraded against with the smartest frameworks possible. dont see a guard change, rather its a momemtous opportunity to usher in a new kenya with an internationally brokered pathway that even raila will not wiggle out of. raila is not our future, but "fodder to expend", for lack of better words. if we dont see the bigger picture, we are forced to ur option of retaining obaks as the lesser evil. i think that will be a missed opp.

Anonymous said...

5) i think garth in this case we will be creative. do not go against human rights, but have deals outside the current constitutional framework eg courts to challenge obaks. create what we need out of this quagmire, and then go to legitimize it either through our courts or parlia, a necessarry 'rubber stamp" as a means to cease the moment and transform.

Gathara said...


Raila, during his interview on BBC's Hardtalk yesterday, said he is willing to join a transitional arrangement that would

1) recognise Kibaki as President still in his first term and
2) create conditions for an independent forensic audit and retallying of the ballots or put in place a truly independent ECK to organise a re-run of the Presidential election.

Most importantly, he said he would abide by the results even in the unlikely event that a retallying showed a Kibaki win.

I think there is still an opportunity to salvage the nation and even to make the necessary constitutional changes that would enable us to emerge from the crisis as a stronger democracy.