Uhuru Should Lead or Get Out Of The Way

"Fate, it seems, is not without a sense of irony." It is a line from the hit movie, The Matrix, that our "Digital Government" should be intimately familiar with. On the day that Uhuru Kenyatta stepped on the plane to London on his maiden visit as President to a Western capital (we had all thought that would be elsewhere), it was reported that his hosts in the British government were finally taking steps to address the impunity surrounding historic crimes perpetrated during the MauMau uprising.

The timing of the visit is, of course, ironic because our dear President himself faces his "personal challenge" across the Channel with regards to his alleged role in funding murderous militias during the 2008 post-election violence. He is expected to receive an invitation to visit there soon, though not necessarily in his illustrious capacity.

However, his trip to the UK is also ironic because of some nasty business he has left undone back home. Last week, the Truth, Justice and Reconciliation Commission, which was created to "establish an accurate, complete and historical record of violations and abuses of human rights, committed between 12 December 1963 and 28 February 2008," took out acres of newspaper space to announce that it had completed its report and was about to hand it over to the President. In fact, it gave the day for the handover as Thursday, 2 May 2013.

Well, it transpires that the President was apparently unable to make the time to receive the report. Now, most of the Kenya media are familiar with his "personal challenge" when it comes to punctuality. However, given the importance of this report, one would have expected more than a few eyebrows to be raised. The TJRC is expected to provide details regarding to abductions, disappearances, detentions, torture, murder, massacres, extra-judicial killings, crimes of sexual nature against female victims and expropriation of property suffered by Kenyans in the last half century. Its report should expose those responsible for gross violations of international human rights law and make recommendations. Further the report will look into historical injustices affecting the irregular and illegal allocation of public land, economic crimes including grand corruption, the perceived economic marginalization of communities and misuse of public institutions for political objectives.

In short, the TJRC will  exhume the ghosts of the past and give the country an opportunity to finally confront them. The need for such a reckoning cannot be gainsaid. The just ended elections exposed deep faults in our body politic, many of which reach all the way down to the foundations of our nation. The presentation of this report was to inaugurate a season of debate and reflection on the report leading to a critical reevaluation of our common history and a new understanding of the basis of our nationhood. Such an outcome would improve prospects for a real peace, real justice, real national unity, real healing, real reconciliation and real dignity for the people of Kenya.

However, with his disappearing act, the President has effectively put off that discussion. TJRC officials, while not speculating on the reasons for the snub, say that they cannot release the report findings until he has officially taken possession of it. Shortly after the handover, they planned to have the entire report posted online, for once circumventing the presidential prerogative of deciding what we could and could not be told about our past and the acts perpetrated by the state in our name.

Perhaps it's too much to expect our feckless journalists to ask about this. After all, they have not seemed overly  concerned over the violations of citizens' rights that we have witnessed in more recent times.  Just a day before the report was to be presented,  the cantakerous and obnoxious COTU boss Francis Atwoli declared before both the President and the Nairobi County Governor, Evans Kidero, that he had his own "army" to deal with troublemakers such as pesky political activists, Nary a question was raised. No one has since asked our dear President why he stayed seated when Atwoli ordered police not to interfere as his goons proceeded to "deal" with Boniface Mwangi. Today, none of them questions why it is the battered and bruised activist who is on trial while Atwoli and his thugs roam the streets free.

Then again we shouldn't be too harsh with the press. Their fear of truth, their propensity to put off till tomorrow the thinking that can be done today, their worship of empty celebrity and their celebration of mediocrity - all these are endemic within our society. Our fake news is a reflection of our fake society. Or is it our society of fakes? After all, many had pledged support for Boniface Mwangi's protest. A few even turned up at Uhuru Park. But when he stood up, he was alone. No one stood up for him when he was assaulted.

All this is reminiscent of the days when we keep ourselves locked in our homes when our neighbours are attacked, hoping we won't be next. Or when we watch impassively as girls are pulled kicking and screaming out of matatus and gang-raped, thinking our own daughters are immune. When we laugh at women being publicly humiliated for "dressing indecently." When we condone the abuses meted out by the authorities in far away places like Garissa.

We must shed this cloak of fear that holds us back from articulating a more useful and confident narrative of citizenship. We should once and for all confront our demons and lay them to rest. The President, who perhaps has more of them to face than most, should either lead the effort or get out of the way. We do not have time to waste and we cannot afford another false start.

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.