Why Kenyans Must Keep Their Feet Firmly On The Ground

Kenyans are given to bouts of euphoria. Once ranked as the most optimistic people in the world, it is a society almost congenitally programmed to look on the bright side of life and to seek out silver linings on even the darkest of clouds. It is famously the land of “Hakuna Matata”, which for anyone who’s watched Disney’s The Lion King can recite, is “a problem-free philosophy”.

Our irrational exuberance is once again bubbling up to surface in the wake of the Supreme Court verdict that annulled President Uhuru Kenyatta’s barely three-week old re-election. In a sense, it is understandable. It has been a tense time, filled with trepidation, after yet another rapturous voting day, invested with all the hope for better days the country could muster. This is despite the knowledge that although the country has held regular elections throughout its 50 years of independence, they have never resulted in truly meaningful, lasting change.

Even the 2002 election – perhaps the most ecstatic of them all, given it was bringing the curtain down on the 24-year despotic and kleptocratic reign of Daniel arap Moi – only inaugurated Mwai Kibaki’s turn to eat. Pretty soon, the Kenyans who had been going around effecting citizen arrests on corrupt cops in the belief all had changed, were treated to a rude shock when reports of grand corruption at the highest level began to surface with increasing regularity. So much so, that the President’s own anti-graft czar had to flee the country. Corrupt ministers are "eating like gluttons" and "vomiting on the shoes" of donors, declared the British High Commissioner, Edward Clay.

Anyway, back to the Supreme Court ruling. Similarly to the 2002 poll, the election that the court has just voided was manifestly full of irregularities. However, 15 years ago it did not much matter. The vote against Moi’s handpicked successor – ironically the current incumbent – was so overwhelming that the regime had little choice other than to concede. In any case, electoral reform at the time had mainly consisted of a “gentleman’s agreement” that allowed the opposition to nominate some of the members of the electoral commission.

The integrity of the process today matters much more than it did a decade and a half ago. Elections are much more closely fought and the electoral infrastructure is much more elaborate. Methods for stealing them have also become more intricate and difficult to detect.

After a dispute over the 2007 presidential election led to violence that killed over 1300 people and displaced hundreds of thousands more, a commission led by South African judge Johann Kriegler proposed a raft of reforms to the electoral system, including the electronic transmission of results from polling stations.

Five years later, despite a new constitution, few of those reforms had actually been implemented. During the election, a hastily and dubiously procured system for biometrically identifying voters and electronically transmitting results failed (or was made to fail) across the country. Further, there were allegations that the election had been hacked. If that sounds familiar, it’s because pretty much the same thing happened this year.

However, by the time Kenyans went to the polls nearly a month ago, laws governing the electoral process had been passed and largely clarified by the courts. On voting day, the biometric systems seemed to have worked but not the electronic transmission. As counting proceeded, figures started scrolling across our TV screens courtesy of the Independent Electoral and Boundaries Commission (IEBC) headquarters. Figures seemed to show a constant and consistent lead by President Kenyatta over his closest rival, Raila Odinga. 

The figures, which the IEBC would disown as mere "statistics" when their validity was questioned, were the first sign that something had gone seriously wrong. Thereafter, despite the verdicts of international observers, led by former US Secretary of State, John Kerry, when the IEBC could not produce the scanned forms on which the results were based, it became clear that the election was far from credible.

The appeal to the Supreme Court in 2013 had been dismissed in its entirety, with the court establishing an impossibly high standard of proof which seemed to ensure a presidential election would never be reversed. Four of the six judges who issued the widely-rubbished, unanimous judgment, are still on the court. Perhaps this is why the opposition initially said that although it wasn't accepting the results, it would not be taking its case to the court. Following a change of heart, they did file a petition, which to everyone's surprise, was upheld.

The annulment is a very big deal and definitely worth celebrating. Along with overturning an injustice and reinforcing Kenya’s democratic credentials, by cementing the Supreme Court’s credibility, it has made future 2008-type post-presidential-poll violence much less likely. For once, Kenya the state has stood up for Kenyans, and that is huge. But we should be careful not to get carried away.

First, there were problems with the court declaration itself. One of the allegations that had been put forward by the petitioners was that the incumbent had abused his office by using public resources and officials to campaign. The judges seemed to gloss over this when they found no evidence of wrongdoing despite glaring proof.

Further, the pronouncements of Kenya’s accession to the league of mature democracies were not only premature when the now disgraced Chair of the IEBC made them as he declared Kenyatta the president-elect; they are premature today. The judgement is a giant leap forward but one decision does not a democracy make. It just creates possibilities for a better, more accountable electoral system. However, Kenyans have a tendency to want to persist in these giddy moments of possibility rather than to do the hard work of translating them into reality.  Sadly, as we have seen with the 2003 election of Kibaki, can, if not seized, also inaugurate a much less desirable state of affairs.

  

Of immediate concern is the potential for a backlash from an Executive stung by what it considers to be a judicial uprising. "If you rattle a snake, you must be prepared to be bitten by it," the late authoritarian Cabinet Minister, John Michuki, warned us, after the government raided the country’s second-largest media group in 2006. Kenyans cannot afford to be complacent. President Kenyatta has just been rattled and he is threatening to bite. Already, he has taken to calling the Supreme Court judges "wakora" or bandits and his lawyer has described the ruling as a judicial coup. "[Chief Justice David] Maraga and his thugs have decided to cancel the election. Now I am no longer the president-elect. I am the serving president... Maraga should know that he is now dealing with the serving president," he reportedly threatened on Friday. “We have a problem with our judiciary but regardless we respect [their decision]. But we shall revisit,” he declared ominously a day later.

Whether it’s Kenyatta or Odinga who gets elected in two-months’ time, the independent judiciary will probably itself be the target of an Executive branch used to getting its way. However, with his Jubilee party in control of both houses of Parliament, Kenyatta will pose a particularly grave threat. History has taught us that great gains can be quickly reversed. Kenya still has a long way to go before it can get rid of its entrenched culture of impunity and become a society that truly caters for the needs of all its people, not the desires of a few at the very top.

Finally, another election has to be held within two months. Kenya is only the third country in the world, after the Ukraine and Austria, to have the courts annul a presidential election. In the other two repeat elections, the incumbent won. Now, that itself is not a problem. The Supreme Court has rightly said, who wins matters less than how that win is secured. There is little time to make significant changes to the electoral infrastructure which means there are few guarantees that the same illegalities and irregularities that led to the annulment won't crop up again. Ensuring that Kenya does not end up where it started will require vigilance from all players, including any egg-faced internationals returning to observe and report on the election. The media should set up independent tallying centres and be prepared to call the election, rather than simply regurgitate the numbers and "statistics" coming from the IEBC.

Kenya is not out of the woods yet. The passions and terror that have been on display over the last few months have not gone away. They continue to simmer away just below the surface. While the Supreme Court has reduced the risk of a violent explosion, it has not completely eliminated it. That can only be accomplished through honestly addressing the the problems of our past and finishing the task of implementing the constitution. 

The judgement shows what that constitution makes possible but it would be grossly unfair to heap the burden of actuating it on the shoulders of seven judges. Kenyans must demand that the other independent state agencies, from the National Police Service to the Office of the Director of Public Prosecutions, start to behave and conduct themselves in the manner envisaged by the constitution, not as lackeys of the Executive. Kenyans must realize that the people are the ultimate custodians of the supreme law and even as they celebrate, they should be rolling up their sleeves.

Why Kenyan Supreme Court Judges Should Avoid Sausages

“Laws are like sausages, it is better not to see them being made” is a quip regularly and mistakenly attributed to Otto von Bismarck, the famous Prussian statesman and architect of German unification. However, the Iron Chancellor, who died in 1898, was not associated with the quote until the 1930s. In fact it was the American lawyer-poet, John Godfrey Saxe, otherwise famous for publicizing the ancient Indian parable about Blind Men of Hindustan and The Elephant, who more inelegantly said: "Laws, like sausages, cease to inspire respect in proportion as we know how they are made."

As I write this, oral judgements have been completed at the Supreme Court hearing of Raila Odinga and Kalonzo Musyoka’s petition against the re-election of President Uhuru Kenyatta. It has been 4 days of riveting presentation, argument and often, comedy, as one side prosecuted its case and the other tried to rubbish it. The main bone of contention appears to be about means and ends: whether the way the election was carried out matters or we should only concern ourselves with whether the results declared matched how the electors had voted.

In a sense, it could be said that President Kenyatta and the Independent Electoral and Boundaries Commission (IEBC) appear to prefer the Bismarckian formulation that it is better to focus on the final product and not peer too closely at the inner workings of the electoral system. After all, they argue, the whole point of an election is to express the sovereign will of the voters. So, a simple check of the forms prepared at the polling stations (where all the voting and counting happened) should suffice.

The petitioners on the other hand, are more in line with Saxe. They say that the more we actually learn about how the election was run, the less reason we will have to respect the result. They point out numerous irregularities and outright illegalities in the conduct of the poll which they hold undermine any confidence, not only in the veracity of the announced result, but also in the authenticity of whatever documents the IEBC might produce to support it.

I have been somewhat mystified by the way in which these arguments were framed. Throughout, voters have been portrayed as passive actors upon whom elections are visited. The lawyers in the room, including the Attorney-General, behaved very like the blind men of Hindustan trying to define the elephant that is the people’s sovereignty. There seemed little recognition that sovereignty does not start and end with the casting of ballots and determining of who becomes President. Citizens do not become sovereign when they transmogrify into voters. They are always sovereign in a democracy.

Further, as I have written before, voting in an election is not – as one of the lawyers unfortunately declared – the foundation of democracy. How much ordinary citizens can contribute to everyday political decision-making and their ability to hold public officials to account are the true measures of democracy. Thus, if elections are about the sovereignty of the voter, as another averred, then constitutions are about the citizen. And the entire corpus of law, the foundation of which should be the constitution and citizen participation in governance, is an exercise in sovereignty.

Protecting the expression of sovereignty therefore entails more than singularly ensuring the correct result was announced. It also means ensuring that the process prescribed by the law was adhered to. It is not a choice between respecting one or the other.

Now, after dominating TV screens for nearly a week, the process of adjudicating the petition moves into the shadows as the judges retire to consider their verdict. Four years ago, after a similar week of TV drama, they reappeared with a sausage of a judgement, with only a short summary of the decisions delivered in open court but eventually revealed to consist of a messy and unhealthy cocktail of poorly-reasoned arguments.

It is proper that the judges should concern themselves with burdens and standards of proof and with the attendant requirements of who should prove what to which degree of satisfaction. In exercising its delegated sovereignty, the court is subject to the constraints of evidence. What is true and what can be proven not necessarily being the same thing, courts only concern themselves with the latter.

The upshot of this is that the court cannot tell us whether the election was stolen, just whether Raila and Kalonzo can prove it. That means, regardless of what the courts rule, it will still be up to each citizen to decide for himself or herself whether they believe the election was credible and whether the IEBC and other arms of government have properly carried out the mandates given to them.

Still, this does not mean the Supreme Court’s judgement is irrelevant or unimportant. It will decide the legal validity, if not exactly the legitimacy, of the poll and the government it births. It is hoped that the judges will each prepare individual judgements, clearly detailing the reasons for the conclusions they have come to and that each will get to read his or her judgement in open court. The truth is, elections and court judgments should be nothing like sausages. The more one knows how they were made, the more they should command respect and be savored.

Don't Forget The Other National Disaster

When the arrivals section of the Jomo Kenyatta International Airport's Terminal 1 went up in flames, it was interesting to watch the government spring into action. within hours, President Uhuru Kenyatta was at the scene and he stayed there for a few hours more, supposedly to supervise the admittedly crappy response. He and his mandarins were on TV and online providing regular updates. Within days, he had restructured airport security, ordered an investigation into the fire and promised to build a new terminal and fully refurbish the existing three. "We are on top of this. We will find the problem and we will fix it," seemed to be the message.

It is a complete reversal of his ostrich-like attitude to the elections in March. Despite the many failures then, we have heard nothing about an audit or about reform. Quite the contrary. His deputy has declared that the IEBC did a "fabulous job." This cavalier approach is all the more surprising given that it was a bungled election that set the country alight 5 years ago.

You would think that a burning airport would be of less consequence than a burning country. But the Kenyatta administration seems to care more for the former than the latter.

The smouldering terminal is the perfect symbol for a smouldering nation. The election fiasco has left many angry and disillusioned with the hollowness of democracy. Autocracy stalks the land. From the rehabilitation of Daniel Arap Moi to the increasingly bellicose and threatening language of the new Principal Secretaries, it is clear that the country is heading down the wrong path.

The airport fire was the result of multiple institutional failures. Over the last few days, the evidence of the country's lack of effective disaster prevention and response tragedies has been overwhelming and is leading to calls for change. Already, President Kenyatta has declared the overhaul of our national disaster services with the formation of a new agency to spearhead coordination. But what about that most severe of threats to our national fabric, the election?

The institutional failures in March must also be addressed. When the IEBC cannot say who or how many voters it registered; when all the systems meant to ensure the transparency and credibility of the poll fail; when the newly minted Supreme Court refuses to consider evidence on a technicality and offers up a moronic judgement; then we are playing with fire.

Just like there were reports of immigration and Kenya Airports Authority staff shooing people away from a small fire while leaving it to become an inferno, our politicians are shooing us into the safety of our tribal stockades while leaving the country to burn. We must resist this. The charade of "accept and move on" poses real risks down the line. If we do not seek to understand and address the problems of the last election, we will go into our next one even more divided and even more frightened.

Today the air is thick with talk of national disaster preparedness. Every pundit on TV and on the internet is offering his two cents on what failed and what needs fixing. Yet the March elections were every bit a national disaster as was the JKIA fire. And when we speak of improving our capacity to prevent and respond to disasters, we must also speak of how we are responding to the election and what we are doing to prevent catastrophe in 2017.

I, for one, would much rather see President Kenyatta taking the lead in, and giving regular updates on, that effort. And I would much rather the talking heads were putting that at the top of the national agenda. Let's get on top of this. Let's find the problem and let us fix it

The End of "Accept and Move On"?

For the first time in a long while, there's reason for hope. Hope that the veil of darkness and silence that had descended upon Kenya following the election has begun to lift. It may be that it is always darkest before the dawn but just as those of us insisting on an examination of what went wrong were beginning to feel anachronistic, a typically Kenyan piece of political theatre seems to have brought the whole "accept and move on" charade to a screeching halt.

It all begun with Kethi Kilonzo's nomination for the Makueni senatorial seat left vacant by the death of her dad and ended with the incompetence of the Independent Elections and Boundaries Commission put on full display. Today, it is immaterial (though it shouldn't be) whether Kethi lied about being a registered voter and whether she presented fake, forged or stolen documents to bolster her case. The spotlight is squarely on the IEBC which has been shown to have used differing standards to register voters as well as an inability to maintain an accurate and consistent record of how many voters it had actually registered, whom they were and when it registered them.

Coupled with its inability to verify that info on voting day following the widespread failure of the electronic voter identification system as well as the inability to verify vote counts following the failure of the electronic results tallying system, this inevitably calls into question the credibility of the election and its declared result. That doubt is further reinforced by the fact that more than four months after the election, the IEBC is yet to publish the full results of the election amid reports of difficulties explaining the one million voters who seemingly only voted for their choice of president but not any of the 5 other races, behaviour that no electoral observer seemed to have witnessed.

The Kethi show has exposed the rot behind the wall of silence and denial and, in the light of its revelations, it seems Kenyan society is beginning to wake up to the possibility that it may have been the victim of massive fraud. This awakening is being led by the media. "Today there was an all-out war by the media on IEBC, did we miss the bus three months ago?" tweeted KTN journalist Dennis Donsarigo after apparently suddenly discovering the multiple voter registers. The Law Society of Kenya also seems to have realized that letting the IEBC conduct an audit of its own performance is not necessarily a good idea. "There is no way you can audit yourself that is why we have started our own independent investigations that would look into IEBC's conduct following the last polls," declared its chairman, Eric Mutua.

Aside from the IEBC, there is another institution that will need to be scrutinized. Given all the inconsistencies, incompetence, contradictions and outright fraud that is being brought to light, the Supreme Court of Kenya's declaration of the election as free and fair looks tenuous indeed. Basically, the court would have us believe that a dubious voter registration exercise, dubious voter registers and a dubious vote tally delivered a credible election. Chief Justice Mutunga and his 5 colleagues have some explaining to do especially after they refused to consider all the evidence and issued a joke of a judgement.

Finally, we may feel the need to re-examine the constitution and electoral laws. For example, we clearly need to have a longer period between the actual election and inauguration to allow for proper hearing and disposal of presidential petitions. Other issues arising from a proper audit of the roles played by the IEBC and the Supreme Court in this tragicomedy may also point the way to other necessary legislative reforms.

But, more than all these, I hope it will lead to a real soul-searching among the Kenyan people. How could we let ourselves be so easily blinded and misled? How were we so easily stampeded into our tribal stockades? How did we end up with a government headed by persons suspected of the most heinous crimes against humanity, a senate and parliament peppered by suspected drug barons and ex-cons and whose members seem only keen on self-aggrandizement? How is it that our devolved county governments seem to be little better? How come all our politicians seem little more than bigoted tribal kingpins, what John Githongo describes as "Kenya's most committed tribalists, thieves, liars and anti-Kenyans"?

The book Wars, Guns & Votes: Democracy in Dangerous Places by Paul Collier offers some interesting insights. His research reveals that democracy, at least as practiced in the ethnically diverse societies of "the bottom billion" -what used to be called the third world- has led to increasing polarisation, increasing conflict and has driven the honest and meritorious out of public life. Sound familiar? The key phrase there is "democracy as it is practiced." For we do not really practice democracy. What we have is a shamocracy: it looks like democracy but is really nothing more than a sham: elections but not the power of choice; constitution but not the rule of law; a free press that tells us nothing; the language of tolerance and universal rights, but none of the protections. It turns out, however, that while actually being a democracy is very good for poor countries, pretending to be one can be very bad. And that is what we've been doing.

It is time we got back on the reform bandwagon and became serious about democratizing. Only this time, we must begin by reforming and democratizing ourselves. We must stop the pretense. And we must begin by insisting on the rehabilitation of civil society, our guiding light in the dark days of autocracy (which, by the way, is way worse than pretend democracy). Actually, we should beg their forgiveness for the way we have allowed them to be mistreated and misrepresented. Thereafter we must together begin the task of self-examination. The now-forgotten TJRC report would be a great place to start.

This can be a proper Jubilee year, not just in name, a fake foisted on us by a bunch of politicians. It can be the beginning of a period of recollection, restitution and forgiveness. We can begin to understand the and resolve the problems of the past and put those ghosts to rest. And we can together agree on what needs to be done about the last elections and begin to chart a way forward. If we do so, in 5 years time we can celebrate a true milestone along the path to real democracy and nationhood. 

My Dissenting Opinion

Legal judgements do not always make for absorbing reading. I suppose this is because judges want to sound measured and impartial, disinterested if not particularly interesting to those whose study of the law consists of a few seasons of Boston Legal.

And so it was when the Supreme Court released its judgement, finally offering up a justification for its decision to uphold the election of Uhuru Kenyatta as President of the Republic of Kenya. Still, as I dutifully and valiantly trudged through it 113 pages, I found myself getting all emotional about this lack of emotion.

Now I'm a great Boston Legal fan so I will not pretend to understand the intricacies of law or the ways of lawyers. My ignorance was not helped by the reluctance of the media to unpackage the judgement and explain the old precedents it has overturned or new ones it has established (BTW, why is that?). In any case, how a ballot transmogrifies into a vote holds little fascination for me. What did, however, was to see the problems of the election reduced to such bland, tasteless and uninspiring arguments.

“Is that it? Where is the outrage?” I kept asking myself. Surely, the frozen IEBC screens that kept a nation in purgatory for a week deserve more than a “We came to the conclusion that, by no means can the conduct of this election be said to have been perfect, even though, quite clearly, the election had been of the greatest interest to the Kenyan people, and they had voluntarily come out into the polling stations, for the purpose of electing the occupant of the Presidential office.”

I am sure the distinctions of who bore the shifting burdens of proof as well as just how convinced the Court needed to be (beyond reasonable doubt or on the balance of probability or somewhere in between) have their place in the sanitized arena of the courtroom where everyone is friendly and learned. But out here, where elections are more about raw emotions than rational choices, such abstract considerations are a luxury we cannot afford.

Whether “the Petitioner clearly and decisively show[ed] the conduct of the election to have been so devoid of merits, and so distorted, as not to reflect the expression of the people’s electoral intent (italics theirs)” is of less import as a test here. In the end, the fact of who won pales in significance in comparison to the manner in which that win was secured.

By now, the substance of the legal battles enacted live on TV will have ebbed from most minds but few will ever forget those IEBC screens. In the real world, it is those screens that militate against legal assumptions such as omnia praesumuntur rite et solemniter esse acta: all acts (of public bodies accused of irregularities) are presumed to have been done rightly and regularly. We dare not presume a thing like that. How can we when it is public bodies that have given away our land, detained, tortured, disappeared and murdered those they were meant to serve, and turned a blind eye when thieves loot the treasury and granary?

In truth, while the Supreme Court has quite correctly pronounced itself on the validity and legality of the IEBC register(s), methods and declarations, the ultimate judges of the credibility of the exercise are the people of Kenya. If a number of them feel that their votes did not count, feel disenfranchised by the system, then to that extent the processes failed.

The Court’s opinion is undoubtedly the one that matters in deciding whether the election achieved the standards set forth in our law. And I wouldn't have it any other way. But there are other opinions and other courts. The opinion of the public court, imperfect and prone to mood swings and vulnerable to deceptions, matters most in sustaining and developing a democracy. It is the opinions of the millions who live and breathe outside its hallowed halls that should always have been the focus of our attention. So, when one hears stories of people wanting to burn IDs or saying they'll never vote again, it is clear that there are real credibility issues that need resolving. The question must now be: How do we restore the faith of half the country in a system that they believe, rightly or wrongly, has betrayed them once too often? How do we provide relief to the other half who feel the need to constantly and sometimes hysterically defend the electoral result?

I think a good place to start would be a comprehensive, honest and impartial audit of the entire electoral process, everything from the registration of voters to the tallying and transmission of results. Something more than the corruption investigation that the Supreme Court has recommended.

Lets's fix this before we "move on." It must not be swept this under the national carpet. And while we’re at it, an airing of our collective closet -the TJRC report is due in just over two weeks time- would help immensely in tempering the emotion associated with elections and creating space for more rational deliberation, perhaps too not unlike what happens in the courtroom. After all, we could use a break from the interesting times.

The Republic Of Fear

It used to be we were only afraid of the state and its capacity for illegitimate violence. We blamed politicians, not opinions, for inciting tribal clashes. It was the government, not citizens, which gagged the press or forbade dissent.

No more.

Welcome to the Republic of Fear. Where terror rules and citizens are frightened of what lurks in the dark recesses of their hearts. It is a country where no questions are allowed which may break uncomfortable silences or awaken the ghosts of deadened intellectual faculties.

This is the nation we are building in Kenya. A country of official truth. When citizens feel disenfranchised by bungled elections, we tell them to shut up and keep the peace. Wait for the Supreme Court to tell you what you should or should not think. Do not trust yourself, just as we do not trust you.

Well, the Supreme Court has given its ruling. The election and declaration of Uhuru Kenyatta as President-Elect were done in conformity with the law. That is the official truth. We will wait for two weeks to learn of the reasons underlying it. In the meantime, we are told to keep calm. In the Republic of Fear, inconvenient opinions and uncomfortable thoughts are banned. But, unlike in the past, this is not a ban enforced by the security agencies. It is imposed by mobs of citizens which roam our airwaves and digital superhighways, armed with virtual machetes and ready to hack away at the first hint of free thinking.

We have already let them burn down the temples of dissent. Our famously rumbustious press now remains mute when expensive BVR kits and results transmission systems don’t work and when the IEBC presents woolly sums, and when protestors (today called rioters) die following the Supreme Court verdict. Our civil society organisations have been silenced by dubious allegations of pursuing foreign agendas. When politicians kiss and make up, "historical grievances" and the IDPs they have generated disappear.

Only official election results matter -or more accurately, only the official version of election results matters. Media houses with reporters on the ground at all polling stations cannot call the election as their sums may differ from official tallies. And if they do differ, they are not to ask questions. The official truth trumps all! Today our journalists are reduced to performers and comedians – a role they seem to have accepted with relish as cheerleaders for the “Keep the Peace” and “Let’s Move On” bands.

But what exactly are we moving on to? Rather than signal Kenya’s rise from the ashes of the violence of five years ago, the elections have revealed just how much further we still have to go. We have spent the last half-century of independence in a battle against the state, in an effort to tame and reform it. In large measure, the people’s triumph, as reflected in the new constitution, has turned out to be a hollow victory.The struggle against the state obscured a much more fundamental challenge. With these elections, that mask has been removed. It is now obvious that the real enemies lie within. It is our passions and minds that need reforming. It is our fear and distrust of one another that need taming.

No longer can we just blame a thieving political class. It is rather a time for deep reflection on our own conduct and beliefs. The media can and should lead this effort. It is the least they can do to begin to atone for their own conduct over the last month.

Peace For Our Time

On 30 September 1938, British Prime Minister, Neville Chamberlain, walked the steps of a plane at the Heston Aerodrome in London brandishing a piece of paper, the result of negotiations he had had with the German Chancellor. “I believe this is peace for our time,” he would later say, a phrase he would come to regret. For a world still traumatised by the Great War which had ended just two decades prior, the news of an agreement between the British and the Germans averting another catastrophe was welcome.  “Good man,” US President Franklin Roosevelt telegraphed from the across the Atlantic.

The Munich Agreement would turn out to be nothing more than a temporary stay and within a year the globe would be consumed by an even greater conflict. Three quarters of a century later, Kenyans find themselves at a similarly pivotal moment. Like the British at the time, memories of a recent conflict are still fresh. Like them, our overriding objective is to avoid a repeat. We too have been guilty of selling out the weak in the course of doing so.

Today, all eyes are on the Supreme Court. With bated breath the country awaits its decision on the petitions challenging the outcome of the election. The court’s decision may resolve the question of who becomes the next president of the republic, but like the Munich Agreement, it will only be a balm on a festering wound. It will not address the feelings and emotions tearing at our hearts, the underlying currents rending our national soul.

The fixation with who becomes president is diverting our energies from more fruitful pursuits. More important than who moves into Statehouse after its current tenant vacates is what that person does. And we should give thought to a post-election agenda to tackle the issues that have been highlighted by the election.

The urgent priority must be to begin the process of healing the country following a bruising election. The president, whoever it is, must recognize that half the country voted against him. This is not a time for chest-thumping and claiming wide ranging mandates. It is rather a time to reach out.  Also, there is an urgent need to build bridges between our polarised communities and begin to address the root causes of that polarisation. We cannot afford to spend another five years burying our heads in the sand. Our ignorance has not brought us bliss, and it is unlikely to.

The work of the Truth, Justice and Reconciliation Commission will be crucial to this. The Commission’s report is due out in just over a month’s time and should cover gross violations of human rights, economic crimes, illegal acquisition of public land and the marginalization of communities. That report can form the basis for a national catharsis. For the first time, the country can bare its soul and confront the past. It must be made public and not be hidden like other reports that have gathered dust on the presidential shelf. Victims must be given the opportunity voice to their pain, families to grieve and sinners can seek penitence.

According David Tolbert, president of the International Centre for Transitional Justice, “truth commissions work more effectively when they complement the work of criminal justice, reparations programmes and institutional reform.” If the TJRC will have done a thorough job, and it is hoped that it will, then its report should make for uncomfortable reading for many of our most powerful and long self-serving public officials. The TJRC may not have the power to prosecute, but it can recommend prosecutions, reparations for victims, institutional changes, and amnesty.

The implementation of these recommendations will fall squarely on the incoming administration and its leader must be seen to act quickly and to act comprehensively. It will not do to repeat the pattern of the past with the charade of half-hearted prosecutions. If it is to be a credible exercise, the justice must be real. There must be no return to business as usual. Necessary reforms must be undertaken to prevent future injustice.

If this is done then Kenya will be well on its way to a real recovery. Defending the rights of the weak and the marginalised, not ignoring them, is the true path to a genuine peace.