MANAGE EXPECTATIONS: THE PRESIDENTIAL PETITION MAY OFFER REAL DISAPPOINTMENTS:

“Yet there are multiple polling stations alleged to have recorded an over 100% voter turnout. The CORD legal team may have relative ease bringing the outcome below the constitutional threshold. If that were to happen, any other consideration notwithstanding, either a run off or a re-run will be occasioned. If either of the outcomes was to pass, for one will certainly pass, is the Kenyan public being prepared to first accept the outcome and secondly face the consequences?”

Kenya does firsts in many ways, and just again, we are the first country on the African Continent to file a petition challenging presidential outcome in a supreme court with real chances of success. This comes in after we were the first country in the history of democracy, to record an 86% voter turnout. And just as expected, the two major factions are offering incredible inspiration to their supporters. One thing that has awed many pundits is just how much political energy this country has, reminds me of the South Korean airline thing.

A presidential petition takes politics to the table of law. And while the two are not strange bedfellows, mediating political conflicts with the law has never been an easy task. And this is as hard as it can get. In the words of Larry Madowo, I do not envy a Supreme Court judge. The reality of this petition, in my opinion has not been given adequate national conversation as it should. Its implications, merits and more importantly consequences should it be decided either way. There is a real chance that the petitioner may lose the petition and the president elect sworn in. Precedence globally shows that overturning a presidential election is pretty a herculean task.

In particular, complainants need to demonstrate systematic and real sabotage of the electoral system to the advantage of the winner. We can only speculate, whether the CORD alliance has such. The other aspects are the extra legal considerations that will certainly come into play. And those who have keenly looked or analyzed any judicial decision issued, directly affecting the electoral process, these have had a firmer role than the law. It should not be lost on observers, that a week to election, the supreme Court allowed the candidature of Uhuru Kenyatta, Raila Odinga and William Ruto with the promise of releasing their reasons after the election. In some instances, the judiciary has ‘colluded’ to afford the electoral management body operational convenience.

Consider the decision on boundary review; it was conveniently rendered on the last day permitted by the law to ensure no possibility of appeal. In other instances, the jubilee luminaries have but manage to accord decisions of the court to what would appear ‘popular opinion.’ I read a decision of the high court, on why it thought it did not have jurisdiction to determine the suitability of the UhuRuto candidature, bits of it sound like a redraft of political campaign rhetoric, just a pointer that our judges watch news.

Then there is the heavy aspect of public interest. For instance, what would be the implications of finding the voter register illegal? Whether the alterations were justified, (they may be) there is the undeniable aspect that subsequent alteration after official gazette notice was illegal. Would a finding be made that the register is illegal, if it were to be so, would the whole electoral process be a nullity, would the judiciary affirm such a prayer that may lead to every loser filing a petition? Equally, the jubilee has tried to push the impression that a lot of water has gone under the bridge. Indeed, a silent legal principle exists where the law may excuse an illegality if there will be extreme interruption of the status quo to the disadvantage of the society.

With the president elect having met constitutional office holders, and set a working pace, met the private sector, briefed on security matters in accordance with the law, received congratulatory messages from some of our ally states, might it be better to find that sure, we need to review a couple of failures in our electoral system, but have the president sworn in? On the other side, the thread that needs to be broken to render the declaration of Uhuru as president elect an illegality is exceedingly small, barely 5000 votes. CORD may need only to demonstrate that over 5000 votes were illegally given to Uhuru to make the declaration a nullity.

Reliably, I am informed that their legal team believes it can demonstrate way beyond that. Investigators who have combed the tallying process seem capable of pin pointing how the tally was inflated. The civil society seems to have evidence that indeed there was inflation. If that were to be proved, it would bring the results below the now famous 50%+1 mark. This informs why Dennis Itumbi and Moses Kuria went to Court to seek a determination that spoilt votes should not be included in the final tally. You would understand the interest behind this push that matter, in my opinion, betrays a certain level of panic. There is also evidence of relative reducing of the Odinga Vote which may make the 5000 margin above even lower.

Yet there are multiple polling stations alleged to have recorded an over 100% voter turnout. The CORD legal team may have relative ease bringing the outcome below the constitutional threshold. If that were to happen, any other consideration notwithstanding, either a run off or a re-run will be occasioned. If either of the outcomes was to pass, for one will certainly pass, is the Kenyan public being prepared to first accept the outcome and secondly face the consequences?

Unlike many countries, political leaders are the most trusted lot in Kenya.Yes, forget the occasional pretentious complaints we give, if Uhuru or Raila were to say they do not have confidence in the court system, even the most top of the elite would skew their opinion to agree to it. While both Odinga and Uhuru have indicated they will respect the courts verdict, will their supporters agree? Indeed, we have seen several instances where the two leaders are prisoners of their supporters’ interests. What is the implication of the court disagreeing with the petitioners? Is Kenya willing to keep faith in a judiciary that will certainly hurt part of their feelings?

In other places, when a Supreme Court rules against political interest, there is deliberate intrusion, it has been seen in the US. Will either determination assert the court’s position in Kenya or open a fury and incentive for political frustrations and public distrust? I guess it will boil down to you my reader, are you ready to celebrate our institutions when they act to your inconvenience?

THE CORD PETITION: IT’S RAILA’S STATESMANSHIP ON TRIAL

 

I recently joked with a friend, that I believed Isaack Hassan for one simple reason; the Kanzu he wore on Friday. My readers will note, that towards the election, I wrote that Kenyans were faced by a certainty of evil in the election choice, and that in my estimation, Raila was the less evil.

As I expected, CORD adherents agreed with me, jubilee pals questioned my objectivity. While it is impossible to influence how one sees my opinion, I am certain that I owe my absolute loyalty to my thoughts and discernments, not a party or a political coalition.

When election results were announced, the CORD coalition candidate Raila Odinga declared he did not recognize the results and would seek legal redress. It excited passion, many lauded him, many vilified him, and many lacked an opinion.

Those who disagree with him, see Raila as a power hungry politician, who cannot agree to any outcome that does not favor him. Those who agree with him say it is his right, entrenched in the Constitution and by all means he should exercise it.

While I initially thought it was unwise of Raila to file the case, for the simple reason that he would be at a political disadvantage, I came to realize that no one takes such an action without deeply going over the matter.

Rights can be a nuisance, but their absence is worse. And for speculation’s sake, imagine the court annulled the result; we went for either a run off or a fresh election and then Uhuru Kenyatta Won. I imagine, we would have spent 6 billion shillings, to confirm that Uhuru is president. I see sharp tongued, anger-writhing social-media moguls tearing him apart. He will perhaps be the single most Kenyan who has cost Kenya the largest amount of money to get him out of office. He will retire to Bondo or Karen perhaps with half the country saying ‘to hell with you’.

But wait a minute, is this reality not apparent to Raila. I certainly am sure it is. I went over his speech when rejecting the results, he said much stuff, and one outstanding aspect was: He knows he cannot lead if the people do not want, but he has to be sure that the people do not want, and that in his opinion, it was democracy on trial.

I have to admit, I do not know what to believe, I do not know whether it is a deep sense of wishing to see democracy entrenched or a matter of fulfilling his ego that is at play. But whatever it is, it shall have a deep bearing on how tomorrow will evaluate Raila’s place in the history of our country.

I have to admit that deep down my heart, I hope that the CORD’s allegations be found untrue; that they were perhaps founded on an honest, but untrue belief. My hopes are not influenced by the thought of this country spending six billion on a fresh election or the ‘fatigue’ people are suggesting. I hope that these allegations are untrue, because if they are, we will be a plainly forgetting nation.

For speculation’s sake, what would a finding that the election results were doctored mean? If it does not change anything else, it must change the narration of who is “hungry for power” in this country. If someone doctored the election process, it would show the regard they give Kenyan lives, that after 2007, we would ever again dare to follow the same path to influence whoever gets to power.

More than anyone else, the reality of Raila the man is what is on trial. This petition will prove whether he is plainly hungry for power, whether he is a person who did everything he did to get the big seat power or confirm that he is a democrat who could shut his ears to the shouts of half a country and follow his true persuasions.

Its Raila’s statesmanship, his ability to live what he made us believe that is on trial. This ultimately makes me agree to this petition.

If Raila exited the political scene with that defeat, he would be a character that may have been misconstrued forever. His supporters would see Raila the hero, the man who was caged for political pluralism and his opponents would see Raila the villain, for whatever reasons they have.

I think this petition places his reputation on trial, a chance every Kenyan should welcome. We have a chance to see what influences political decisions of our leaders. That petition, its substance and basis will help me to know whether to hold him in high esteem forever, or concede that his actions were a mere scheme to disguise an otherwise hungry man.

In this regard, I think all well meaning Kenyans should co-operate with the process. In particular the IEBC does not want half the country to continue cursing that their man was rigged out. The IEBC chair stated that the elections were credible, in that sense the commission, if it so believes has no reason to withhold any information from the Cord petitioners. Rather I would think, it should facilitate that access.

I was blessed to be part of a team of Kenyans who drafted the Freedom of information Bill and held two subsequent meetings with the then chairman of Parliamentary Committee on Information Hon. Rege trying to push that the bill be debated; it never was, because the government thought its proposals would make Kenyans to have rights to “sensitive” information.

I equally followed closely a case filed by Gitobu Imanyara on article 35 of the Constitution. By the determinations of the high court, CORD is within its constitutional rights to seek that disclosure, and the IEBC under an obligation to disclose the information.

I expect the High Court to order for that disclosure, and if the IEBC has nothing to hide, it should open its doors for scrutiny and facilitate the true determination and conclusion of the matter.

Looking at it from another angle, would it not give UhuRuto supporters greater pride in the duo if the process of their getting to office is audited and given a clean bill? They will have a right to say: “Just like you have been silenced, may you keep silent for the next five years”

And UhuRuto will take that oath, and serve all Kenyans, and I will know men can go to prison, reject credible results, Go to Court when they are hungry for power.

For the certainty of our future, this is worth a billion dollars.