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.

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.