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Paza Sauti
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22:21
From: Paza Sauti
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Like all Kenyans, I love peace, I would even say I love peace more than democracy. I rejoiced when Dr Annan declared that there was an agreement between Raila and Kibaki. However, I am uneasy with the arrangement that I have seen evolve over the past couple of months.
It has been a while since I posted on this blog. The main reason for this delay was that I traveled to Kenya. My intention was to post an article from the belly of the beast, but my best efforts were thwarted by the slow connection speeds. But that is a topic for a different blog site.
In my previous article, I was enthusiastic, but suspicious of the mediation and negotiations and for those with ODM persuasions like me cannot help but feel that we have been short changed by both politicians. I am one who believes in voting for my interests based on the issues. I have never been one give to personality cults. My membership in ODM is not linked to Raila or The Pentagon in anyway. The reason I supported Raila and I am passionate about ODM is that ODM appears to be the party of ideas and Raila has been a transformational leader to this point, and not because his Bondo is near my Vihiga or we are bonded in some Western Alliance. I believe in the issues: that Kenya needs a new constitutional dispensation as soon as possible, Kenya needs to move to a devolved system of government in which my grandmother in Vihiga will have greater say in the priorities of her government, and that corruption has to be uprooted by a relentless radical like Raila, before a foundation can be established, for a nation based in the values of our forefathers and not in an imperialist colonial mold. In my humble opinion these core issues will be beneficial to all Kenyans current and future.
My frustration with the current peace accord and all its outputs is that they are a result of compromise over compromise, and it appears that the ODM ideals will be watered down by the PNU agents who want to maintain the status quo like all incumbents. This tendency to reject change is due to the assumption at any alteration to the current course is a rejection and reflection of the regimes past failure: hence Kibaki's, Kazi iendelee, without questioning if the job at hand is the correct task for this time. Therefore, I am concerned that any changes to the primary structures will be insufficient, inconclusive, insincere compromises between the two parties that do not trust each other and will leave the people behind.
As I said in my previous article, Kenyans should not settle for a boardroom negotiated outcome. This type of settlement excludes the Kenyan people and is based on a ‘give and take’ with illegitimate office holders (remember, we do not know who won the elections), not mandated by a clear majority in Kenya. My thought was that the purpose of the mediation should have been to work out a formula that allows for fair judicial process, that will ratify or nullify the elections and have the resulting presidential by-election in the most reasonable time-frame. The sooner decisions are taken away from the boardroom and brought back to the Kenyan people the better.
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17:27
From: Paza Sauti
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I have received very interesting remarks and comments on my previous article ' Raila should prepare for his day in court'. Most have had interesting things to say, but the most intriguing question is, how does ODM go to court? Or more specifically, how does ODM set itself up for a fair or rather a fairer outcome based on the current power structure, in which Kibaki controls both the judiciary and the executive? I don't claim to know all the legal/constitutional intrigues and machinations that may lurk in the process, but I believe that a lot of the pieces are in place for a legal resolution of this impasse. I insist on a resolution based in Kenyan law for two reasons - one, once this issue is resolved, I would like this to be a source of national pride, a precedent, for Kenyan to say "Even when things fall apart, the center still holds” and this center is the basic humanity of Kenya’s silent majority and the impact of a rational population on an irrational system; where the people's justice eventually prevails. And secondly, to provide that indisputable framework for a resolution, which will stand within the existing law, thus robbing the PNU electoral bandits of their excuses. First, ODM should not settle for a boardroom negotiated settlement. This type of settlement excludes the Kenyan people and is based on a ‘give and take’ with an illegitimate government, not mandated by the majority in Kenya. My thought is that the purpose of the mediation should be to work out a formula that allows for fair judicial process that will ratify or nullify the elections and have the resulting presidential by-election in the most reasonable time-frame. The sooner decisions are taken away from the boardroom and brought back to the Kenyan people the better. Under the Kenyan Law, we have provisions where judges from other commonwealth countries can serve and work in Kenya. This is one of the colonial heritage hangovers that may be useful in this scenario. We could use our otherwise valueless membership in this organization by getting a panel of judges, under referral, who will judge the dispute under Kenyan law. My suggestion would be an Indian, Tanzanian and a Zambian judge. This selection is not of the exclusive counties to consider, but of a mix of countries that have had some experience and some success in developing a democracy in the developing world. These countries have legal structures that have their heritage in the British system of law, thus very similar to Kenya. Select judges from these countries would be impartial unlike say British judges who would need to balance the just out come with British/Western interests in Kenya. Once this impartial arbitrating body of commonwealth judges under Kenyan law is constituted and ratified, the political impasse issue should be passed to this body for judicial resolution as soon as possible, and Koffi Annan can continue with the humanitarian and long term constitutional issues that will provide a launching pad for the new administration. A boardroom negotiated outcome can only be useful in an environment where both parties are trustworthy and are in touch with the public's interest. Neither of which is true. Kibaki has proved to be unreliable. He will renege on any and all good faith agreements - MOU, IPPG, Election pledges etc - whenever it suits him. For Kibaki, the Machiavellian law, where, the end justifies the means, seems to guide his every move. This conscience less partner necessitates a legal framework with penalties for non-compliance. If Koffi’s process does not hinge on a legal solution, then we can be sure Kibaki and his goons will find a way to turn this arrangement into a nightmare.
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15:10
From: Paza Sauti
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As I have said before, I am 'ODM damu' and I believe that this election was stolen by Mwai Kibaki and his cronies. I believe that this atrocity is unforgivable and those responsible should be charged in a court of law, for treason against the Kenyan people and receive the due penalty. Having said this, I am only open to peaceful means to resolving this impasse. My objection of violence is based on the same reasoning that demands that this electoral fraud must be resolved. The instance we perceive options outside participatory democracy, as viable means to obtain political power, be they electoral fraud or coercive means, opens a Pandora's box that offers legitimacy to illegitimate means. I am of the opinion that ODM should prepare for its day in court. I know this is an unpopular opinion in my ODM circles, I recently polled some of my colleagues on this question and a solid 85% were categorically against the idea, understandably so, because this opinion does not guarantee success and involves significant risks.
The first risk is one of principle - in going to court, in petition, one is accepting even though partially, or in interim, the legitimacy of this executive and allowing it to function, and exercise its full constitutional mandate as appointed by the people, and we all know this is not the case. The fact that the position that is disputed is the head of government, head of the military as commander in chief of the armed forces and the ceremonial leader of the nation, demands that this leader draw his mandate from the people and this be a true mandate. Therefore, as the court runs its course, we as Kenyans, ODMers would be in principle accepting this unpalatable fact, even in the interim.
The second risk stems from the fact that the individual, who occupies the sit of the presidency, even if in interim, wields an inordinate amount of power. This authority can be used with devastating effectiveness to consolidate power and obliterate any opposition or challenge to self perpetuation. This was masterfully displayed by Daniel Moi, in the constitutional ninety days, he was president, after Kenyatta’s demise in 1978. Moi was able to contain a powerful and wealthy opposition and proceed to rule for more than two decades, after witnessing the demise or conversion of all his opponents into his supporters. A third risk is based in the concern that the executive has undue influence in the matters before the judiciary. Kenyan history is inundated with a prodigious number of issues that have met their conclusion, without resolution, in the Kenyan judiciary, through executive interference. Be it charges of assault by the first lady, to complex cases like Goldenberg. Amos Wako has reigned supreme, over justice, with his nolle prosequi and I do not know enough about the law to conclude that there any way to stop Mr. Wako from playing his trump card again. This position is supported by the AG’s lack of independence. He recently proposed a way out of the impasse after the elections. This proposal involved independent tallying of the vote, but one imagines, that the proposal was not cleared by his superiors, before it hit the media. The proposal was withdrawn a day later, I believe under the same pressure that Samuel Kivuitu had to announce the flawed results. A final risk that I see, is specific to the Judiciary itself, independent of the Executive’s influence. We have had a large number of botched cases that are still unresolved and justice is still pending for the victims. Pinto, Mboya, JM, Ouko are just a few of the high profile cases, that have not been resolved to the extent where, we can say, justice has been matted in to an unrecognizable outcome. Thus, it is not clear that these courts can actually dispense justice. My thoughts are that these courts, where judges and lawyers wear white men’s wigs are designed to oppress the masses not dispense justice, but that is content of another article. In addition to this inability of the court to dispense justice the system places limits on the public debate on an issue that is before the courts. This restriction presents the threat that all meaningful discussion may be halted, while court proceedings continue. Petitions fall in their own class; it does not take much to loose a petition in Kenyan courts. Kenyan legislators have, out of their own interests, made it very difficult to have a successful petition. Filing a successful petition requires a stringent adherence to rules and regulations that precedent has upheld, the following of letter of the law and not the spirit of the law. The precedents in Matiba and Kikabi’s own petitions against Moi have almost proved that the incumbent has the upper hand in any petition. Hey, wait a minute, you must be saying, this article was why Raila should prepare for his day in court, yet all my arguments are re-enforcing the well entrenched idea that ODM should stay away from the courts. The primary reason I go into great lengths to outline the risks is to communicate my keen awareness of the risks involved, in employing this court strategy to overcome this illegitimate government. My argument is that court should not be relied on or discarded, but maintained as an option amongst a quiver full of arrows.
Now, let us explore the current options, with a view of determining who has the ace in each of the peaceful strategies employed by ODM. I in on no way claim to have their play-book. ODM may have someone with an infinitely larger strategic acumen; I am only calling it as I see it.
Mass action has been the predominant approach employed, and it has been fairly successful, to this point, though at a very high cost. I view success as maintaining this issue as a problem, and not allowing the illegitimate government to proceed with business as usual. My assumption is that ODM's goal is to ensure that the countries systems do not take on a post election stance, pending true resolution. The more Kenya looks like business as usual, the more the electoral fraud will be an event in the past. But this strategy can only keep the issue as current in the eyes of the media, international community, Kenyans and all other concerned parties. There are no power transitions that have been made in the streets; the streets only apply pressure for other measures to affect the actual goal. The mass action has taken the form of street protests, these have served the purpose of wining the perception war, the government, through its police action, is now widely perceived as a draconian and repressive regime. But who holds the ace in street mass action? If the Kibaki regime were strategic thinkers as opposed to reactionary buffoons, they would have stolen ODM’s thunder by allowing the rallies at Uhuru Park and asked ODM to guaranteed that the rallies are peaceful. I would even go further and have the police provide security for the rally. ODM would have had its national rallies, I am sure masses would turn up, possibly the one million people Raila promised, there would have been fiery speeches, then people would go home, and wait for ODM’s next move. If the rallies turned violent then ODM would be called to account as the violent faction. Therefore, the illegitimate administration holds the ace and is able to change the perception dynamics here. The fact that the government has not changed this dynamic, has more to do with the absence intellect, than the absence of the opportunity. Like a brutish ogre that swats a fly on its head with a club, and dies in the process, this government shoots itself in the foot, along with innocent Kenyans.
A more direct approach of mass action would be non-violent civil disobedience, imagine work go slow n critical industries, or all ODM members sit in the roads of all major cities, on railways and obstruct ports. Police would be overrun with arrests and the cells will not be able to hold the volumes. This approach allows ODM to hold the ace and raise the ante at their time and place of their choosing. Parliamentary pressure is the most viable approach in my opinion. Here ODM have a both the ace and the constitutional platform to change the illegitimate government. ODM holds a majority in the house and both the Speaker and the Deputy Speaker position. The most direct approach would be would be a vote of no confidence in the president, followed by the necessary dissolution of parliament, then a new election. This would prove to Kenyans, more so than the world, that peaceful democratic processes can reflect the 'voice of the people'. The challenge here, is good old greed. As much as I love our ODM Members of Parliament, I know they are not selfless leaders and Raila would be hard pressed in appealing to the MPs to loose their seats to provide Raila with a chance to recapture his. The financial cost and the real possibility of losing both your seat and Raila not capturing the presidency, are perceived to be too huge a risk to undertake. The MPs would rather fight for democracy riding on the backs of mwanainchi as they do on all other issues. It would be a pleasant surprise if this option is given much thought and actually carried out. It would warm this skeptic’s heart. A more plausible parliamentary option would be legislative gridlock - no bills, no budgets, and no business in the house. The true cost for this grid lock would be on the Kenyan people, as usual, because this will stop the schools and medical supplies, there will be government layoff and no contracts - development would come to a halt. But this like mass action, this approach would not hold any aces against the PNU bandits because they could dig in and wait this out, and at a certain point Kenyans will want their life back and this strategy could backfire with long term effects for ODM. International pressure is the other option available. This option, though effective in rational environments, where the despot has some goodwill towards his people, and values his or her image in the global arena, has some flaws. In this scenario the despot opts to sacrifice his personal gains for the good of the masses and for the good of his image. Kibaki seems to be to far removed from the cause of the common Kenyan, as displayed by his Nazi like massacre of innocents, in Kibera and Kisumu. He also appears to be too morally inept to care about his legacy. But this is not the greatest weakness of this approach to resistance. For international pressure, one has to rely on a fickle international community. Who will change their pressure depending on what is politically expedient in each nation’s political climate, today it will be Syria- tomorrow Burma - the follow in will be Zimbabwe, depending on what’s hot for the week. ODM should not place all their eggs in this basket. Further more international pressure will only be sustained if the tripartite nexus of media, foreign national interests and a champion is sustained. The media needs to keep the issue alive; Kenya needs to be of some special interest to the international community; and one nation needs to champion the cause. These factors are all outside ODM’s control; therefore making the international community a necessary, but an unreliable partner. Mugabe has shown that inspite of a most concerted effort by the international community the despot still holds the ace and he has dig in and has remained in power like a nightmare in an endless night. This brings me back to why Raila should prepare for his day in court. Taking this issue to court in petition moves the ace from either Kibaki or Raila and places it on the Judiciary. A legal strategy does not preclude the use of mass action, parliamentary pressure, and international pressure in concert with a court petition to this illegitimate I believe with all the challenges, the courts are a direct strategy that gores at the heart of the problem, the Kibaki presidency, and has a constitutional framework that can support a positive outcome and an actual change in government. All other options with the exclusion of parliamentary action will lead to a suboptimal outcome, as a result of give and take negotiations. For me a negotiated outcome will not honor the people’s voice of a Raila presidency, Kibaki as only the member from Othaya, and a shift in roles in parliament. Without this fundamental shift in the status quo, ODM can not effect the systemic changes of a Federal system and uprooting corruption systems and structure from the Kenyan society. Therefore, Raila must do what he is doing but also prepare for his day in court.
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23:21
From: Paza Sauti
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I ask this question having already seen what this man is made of. Kalonzo has shown his true colors and they are not pretty. When president Moi attempted to impose Kenyatta Jr. on our good nation, through his failed project, we saw what we thought was a new Stephen. He seemed to have seen the light and come out from behind the veil that had blinded our leaders and covered the country. We even thought he was ready for primetime and before Raila led us down the Tosha road, we thought mmmmh …. interesting …. Kalonzo has grown himself a pair of nuts, we like those nuts, this could just be the guy. We even shouted his name “Kalonzo” “Kalonzo” hoping we could drown the tosha drum beat. Looking back, I see a number of judgment errors on our part; Kalonzo was a strong defender of KANU and the KANU record of corruption. Kalonzo defended the man, the system and the regime; he fought tooth and nail and only parted ways with Toroitich when Toro could not be of personal political gain to him. Naively, we may have seen this stand against the status quo as Mr. Kalonzo reflecting our values, our ideals, our hopes but we were mistaken. Kalonzo may have excellent strategy and political expedience, he may have nine lives and he knows how to make Kalonzo relevant beyond his support, but I am now convinced he is a just a politician, a self interested politician, I will even go further and say a selfish politician ‘bila msimamo’. One may say, KANU years are KANU years, and that you can pin that KANU monkey on a lot of our politicians - Ruto, Mudavadi, Kibaki, Nyachae the list is long and I agree, we do not know about these individuals, but Kalonzo is now exposed. Let us look at his record, his post KANU record. Kalonzo seems to never have gone past the Kibaki tosha moment and like a scavenger with no standard he has waited for Raila to toss him a bone. Knowing that Raila was the wind behind Kibaki’s sail home, Kalonzo waited for Raila to make his Tosha 2 declaration. To earn him some marks, Kalonzo even tried to be on the right side of history during the Referendum, and Kenyans, wanting to believe that Kalonzo’s conversion was real assigned their values to his actions. He even would have died for Raila at one time. An interesting turn of events happened once Kalonzo knew that the declaration and impending coronation was not forthcoming, with nothing to personally gain, he orchestrated night time burglary, of the ODM Kenya registration papers, with his accomplices Daniel Maanzo and Julia Ojiambo, thinking that, the papers equal votes (This is how far the concepts of democracy are foreign to this self interested politician) Kalonzo was ready for the big time. No agenda, no vision, no following, by hook or crook, or what he called a miracle, he was going to be President. Well, we know how that story ends, a distant third, single digit percentage, was the value people assigned to his antics. But wait, Kenyan politics has a funny way of rewarding losers, I just read that the hyena has his bone and is proudly gnawing on it. With the patience of a crocodile, this dinosaur has reinvented himself not only as pro Kibaki, but as his VP. Hongera Bwana Kilonzo, but it must be amnesia on your part or are you counting on amnesia on our part. Do you remember your own words “I will die for Raila” Do your own words mean anything? Or is it too much to expect some consistency on your part? Three, no even two months ago, you were Kibaki’s harshest critic. Where did this new found love come from? Learn a lesson from your predecessor Uncle Moody. He was hailed as chairman of the Summit at one point, he now is on the political trash heap, rejected by his own. I am not disappointed that Kalonzo would take the position offered to him by this illegitimate government; I am disgusted, that to this date he has not stated his position on the flawed election. He has not condemned the rigging; he has not called it free and fair, he has not even put forward a road map for peace. Like the ruthless opportunist he is, Kalonzo has no stand on this loss of property, life or democracy and if asked about it, I am sure he will give you the answer that gives him the most personal gain. Everything else is just trivial. When Kalonzo was asked if he was surprised with the appointment, he said “I not surprised by the appointment,” “I have been consulting before the announcement.” This man will use any situation for personal gain.
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1:27
From: Paza Sauti
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Let me start by coming clean, I am an ODM supporter, a Raila man, who believes that that a serious injustice has taken place and this has set Kenya’s electoral process back to the stone age. I believe that the current administration is at best improperly constituted and at its worst illegitimate, and what has happened is unforgivable and the responsible individuals must stand and account for their actions. Having said this I am appalled at the lack of leadership, wisdom, and sincerity displayed by our so called leaders, where is our Mandela, Mahatma or Martin Luther King Jr.? Who will stand and be counted amongst the greater men/women in society for a time as such as this? The Aggrieved I have heard PNU members shout in their characteristic arrogance that they won the elections, advising the 'aggrieved' to go to court for resolution. My anger burns against this group for the aggrieved are not Raila, Mudavadi or Ruto for they will be fine with or without the presidency. The true aggrieved are the Kenyan people who have lost their brotherhood, their innocence and their lives. We will never be the same again. Ms. Karua, Uhuru, Nyamweya - please note I have left out the honorable because there is nothing honorable about these individuals - tell me, which court of law will restore brotherhood, what judge will confer trust back to us, and can even chief Gicheru in his highest court resurrect our fallen? So let us be clear, what is at stake here is more than your little egos, this puny competition or your war of words. Remember humility is hard and arrogance is easy. The Prime Movers For Kibaki and Raila I reserve my highest disdain - one is like a hyena on a stolen carcass he sits on his throne unaware of the stench and filth around him. He is like a pillar of salt cursed by God. You are the alleged president so act like one, even if it is just a performance, the EU, the US, the UK, the LSK, the AG, the ECK and even that ECK chairman who announced you king, all say something is amiss. Observers both foreign and local all say all is not well, but like the proverbial ostrich you bury your head thinking, "if I close my eyes long and hard enough, I will truly live in my dream." Wake up, put a plan on the table, negotiate, have mediators foreign, local, rural anything to stop the madness. Didn't you just swear on the good book protect the citizens? I say again, humility is hard and arrogance is easy. And to Raila please follow your own words. Where is the 'Mandela like figure' you so often mentioned? Were these just words? Did you just want to charm us? Remember Nelson was "aggrieved" for 27 years yet he sat and negotiated with his foes, for the good of the masses. How can you be the people’s president if you cannot look beyond your own pain and see the people are suffering, the people are scared, and the people are lost in a wilderness? You are like a man walking backwards, a Paul turning into Saul. Shake off the scales from your eyes, before we find you hurling rocks at Stephen. Wake up and lead your people to safety and the 'Voice of God' will call you forward. Remember, anyone can claim their rights and be brave about it, but one who lays down his rights for his fellow man and is humble in doing so, shall be exalted for humility is hard and arrogance is easy. The Father Figure One other 'leader' who has squandered his inheritance on worldly pleasure is Moi. They say wisdom comes with age, but this is not always the case. Like him or not, President Moi is the one man in Kenya uniquely placed to act as a father figure at this time, when the nation desperately needed a father to give kind words of advice and counsel, but fearing irrelevance and like an alcoholic who just cannot have enough Moi had to involve himself in partisan politics in this election. "Just one more drink, this will be the last" you said, but now you have lost it all. Remember to whom much has been given much will be required. What will you say when you are before the Judge, when he asks " I raised you for such a time as this" Woe unto to you, for you set out to build a lasting legacy, but now that you look back all you see are ruins, with both you and yours rejected and irrelevant. The Cheerleaders Uhuru, Kombo, Mudavadi, Kalonzo, Saitoti, Kaura, Ruto the list is endless, - a group of non-leaders sitting on the sideline, and like the proverbial hyena following and watching as the arm swings hoping it will fall off, so that they can have a bone to gnaw on. Like cheerleaders in their little skirts they jump up and down and all their words just say "look at me, look at me". Be careful! You will go in the way of Gideon and Nyachae, leaders who refused to read the times and be relevant. Here is my advise, you have less to lose in comparison to Kibaki and your pain is not as great as Raila's, you have an opportunity to whisper a third way into their ears. "Let us consider the people, let us think of those in the cold, the grieving, the hungry," you should say. Pull them down from their hard-lines, help to make a way where there is no way. And maybe you may raise and be counted in their stead. The Worst Kenyan Ever The winner of this repulsive title is Mr. Kivuitu, the ECK chair, big boss, earning top dollar from the taxpayer. This man does not realize what he and his 22 witchdoctors have done. Let me make it plain for you - the 300 plus lives lost are for you to account for. Kenyans are taxed every month, money that they could feed and educate their children. This money is given to you and your brood of 22 vipers to avoid what just happened in Kenya. How dare you say 'you were pressured' into announcing fraudulent results. Did the pressure from the phone calls hurt as much as the church fire in Eldoret? Was your fear of being called 'a coward' more than the grief of the mother who lost her three children? What were you thinking? How were you thinking? Were you thinking at all? It is, or at least was, your job to set up structures to stop election fraud. So when you say there was rigging, who are you telling and what do you expect us to do about it? When you announce that you do not know if Kibaki won, who do you expect to know, if not you. It would have been okay if we were disappointed, if we knew you tried, but failed, but we are disgusted, for it was out of personal consideration that you sold your country, like Judas, and for what, so that we do not see your cowardice? So that the TELEPHONE PRESSURE can stop? Take my advice, go to your God and ask for forgiveness, that he may show you mercy, plead with the Kenyan people for forgiveness, refund all the income you have earned as ECK chair, then visit each of the 300 families that lost their lives and commit to restoring the country's faith in the electoral process. Such is your lot and that of the 22 you lead. That Silly SpokesmanI could not end this post without mentioning that silly spokesman. Can someone do us a favor and silence that government spokesman (no violence please). His comments and statements are extremely infuriating. Like a robot, he follows his basic play book as though he was talking about the budget. If you cannot find it in you to stop the spin when the nation is in turmoil, then you lack judgment. It was insulting for you to stand before the Kenyan people and trivialize this tragedy. You claimed that there were, I quote "few trouble spots.....that the government is dealing with ..... and we are in control". For your information we do not care about the perceptions you want to create, these are well good, and part of your job in times of peace, but at this time find it in yourself to serve the people and tell the truth. Can you console a mother who has lost a child by telling her there are many other children. Please! learn some empathy. We are learning of this grave situation from BBC, CNN, Al jazeera, while you flap your gums peddling lies like a paid professional. Stop reading from your playbook and empathise with the situation. The Violent
To the violent causing mayhem my only words to you are stop, repent and turn from your wicked ways.
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21:11
From: Paza Sauti
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This is one of the more reasoned opinions in the Media.
Why Kivuitu must be held accountable for poll chaos
Story by DONALD B. KIPKORIR
Daily Nation: Publication Date: 1/5/2008 | | About 5.30pm on December 30, Electoral Commission chairman Samuel Kivuitu and two other commissioners huddled in a tiny room and, exclusively through state-funded Kenya Broadcasting Corporation, announced President Kibaki re-elected. Within an hour, the President was sworn in at State House at a function in which the national anthem was not played and in the absence of the diplomatic corps. Then the country was thrown into chaos. In the fullness of time, history will apportion culpability over the current anarchy. At the moment, however, Mr Kivuitu should take full responsibility. But as he tries to run away from this responsibility to blame the chaos on pressure from PNU and ODM Kenya, I wish to offer the correct legal position over the whole saga and how the country can wriggle out of it. The Electoral Commission of Kenya (ECK) was created pursuant to Section 41 of the Constitution and thus has security of tenure and independence. Section 42A sets out its mandate to be mainly two-fold — the registration of voters and the maintenance of the voter register, as well as directing and supervising civic, parliamentary and presidential elections. The National Assembly and Presidential Elections Act, Cap 7, and its subsidiary, the Presidential and Parliamentary Elections Regulations sets out the legal framework that enables the ECK to effectively and fully conduct elections. The election of political leaders is a key component of any nation state that claims to be a democracy. To be legitimate, the electoral process must not only be free and fair, but also be seen to be so. The regulations clearly set out the road-map for conducting elections, voting, votes counting and tallying, announcing results and challenging the process. Presidential, parliamentary and civic elections are conducted at the polling stations, which are so located that voters have access to them with the least inconvenience and such that the ECK and the Government provide the logistics, the materials and security. At the moment, there are nearly 27,000 polling stations. Each station is headed by a presiding officer, assisted by poll clerks. On the polling day, voters are given specific times within which they may cast their votes in person and not by proxy. All through the entire voting process, candidates’ agents, the media and accredited observers have free and unlimited access to the polling centre to witness the voting. At the close of voting, the presiding officer and his clerks, in the presence of the agents, the media and observers, proceed to count the votes. Once the counting begins, the law stipulates that it shall not stop until it is completed. The results are then announced at the polling stations. The presiding officer then makes three packets each separately holding valid, disputed and spoilt ballot papers. The officer makes another three packets holding spoilt papers, marked copy register and counterfoils of used ballot papers. He also prepares a statement that summarises the voting at the polling station, which he signs. It is countersigned by all the agents present. The packets are sealed and the agents are free to affix their own seal. The two sets of packets, the statement and the ballot boxes are transmitted to the returning officer at the constituency level. The returning officer, once he receives the packets and boxes from the polling stations, proceeds to tally the votes. This is done in the presence of the candidates’ agents and the media. Vote recounting is not gone into, except for those disputed, and the returning officer has discretion to confirm or vary the disputed ones only. He shall never change the valid or spoilt votes. He then proceeds to announce to all present the results of both the presidential and parliamentary votes. The returning officer is obliged in law to then fill Forms 16, 16A and 17A, which set out the results and the votes cast for each presidential and parliamentary candidates. The statutory forms are signed by the officer and the candidates’ agents. The agents, the media and observers are allowed to make and keep copies of the three forms, which are then physically delivered to the ECK headquarters in Nairobi. On receiving them the ECK gives all parliamentary and presidential candidates 24 hours to lodge complaints, if any, including demanding a recount or retallying. The ECK is obliged to, within 48 hours, allow the recount or retallying. All candidates and the ECK therefore have 72 hours to resolve any disputes. It is only after the period that the ECK can announce the winners of each of the 210 parliamentary seats and issue a certificate known as Form 17 to each elected MP and Form 18 to the elected president. The results are then gazetted. With due respect to Mr Kivuitu, it was irregular, unlawful and void in law to announce the results on December 30 and swear in the President on the same day. The ECK boss announced the results when he did not have the original Forms 16, 16A and 17A from each constituency, refused to allow the 24-hour period for candidates to lodge complaints and declined to allow retallying. He told the world that his returning officers had gone underground, and that he did not have powers to order retallying. On the day the results were being announced, Special Gazette Notice No. 12612 was issued declaring Mr Kibaki the president. Mr Kivuitu deliberately misled the world and subverted the law. Section 5 of the Constitution states that the president shall be elected in accordance with the Constitution and the National Assembly and Presidential Elections Act, Cap 7. Non-compliance with the mandatory provisions vitiates the process. In law, the fundamental principle is that a void process does not confer legitimacy. A public officer acting in compliance with the law must comply with the substantive, formal and procedural conditions laid down and at all times act in good faith and for the public good. As a repository of these constitutional and statutory powers and duties, Mr Kivuitu was obliged to be faithful to the process and not be influenced by external forces, as he has admitted. By his infidelity to the law, he has failed the country and must undo the mistakes. Section 5 of the Constitution states that a president duly elected is the one who has the highest votes cast. The ECK can invoke its powers under the Constitution to retally all valid Forms 16 and 16A and retract the results and announce the valid ones. The announcement of results on December 30 was a ministerial act that does not invalidate the ECK’s constitutional powers. The Constitution states that any other law that is inconsistent with the provisions of the Constitution is void to the extent of inconsistency. Thus, Mr Kivuitu must take the high road, invoke the ECK’s constitutional mandate and review the forms and give Kenyans the president they elected, be it Mr Kibaki or ODM candidate Raila Odinga. The tough stands taken by ODM and President Kibaki’s PNU are theatrics which will not help the country. Neither party has any constitutional mandate that is the ECK’s monopoly. If he allows the status quo to stay, Mr Kivuitu will one day be held to account for the bloodshed and property destroyed. The country’s unity and future rest on his shoulders, and he cannot pass the buck. Mr Kipkorir is an advocate of the High Court. | |
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