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.
