Capital FM (Nairobi)

18 March 2013

Kenya: Over to You Now, Supreme Court Judges

opinion

Since the advent of multi-party elections all election results have been disputed, except in 2002.

In 1992 Kenneth Matiba went to court to dispute Daniel Moi's victory. As Kenya moved on after the elections Matiba's case dragged on, before it was thrown out on a technicality.

In 1997 Mwai Kibaki disputed Daniel Moi's re-election and again Kenya moved on as his petition dragged on for two years before it was also thrown out on a technicality. In both cases, part of Kenya moving on included swearing in the declared winner despite a petition against him.

In 2007 Mwai Kibaki was declared the winner and was hurriedly sworn in. Raila immediately disputed this victory and most likely with the benefit of hindsight chose not to go to court with a petition. He instead called for mass action.

Kibaki's victory was not nullified but the country was also not able to move on until a negotiated power settlement was reached. This was not an ideal situation for everybody, and only came up because of the death and destruction that Kenya was going through as it stood still.

This month, the IEBC chairman declared that Uhuru Kenyatta had won the presidential contest. Raila Odinga immediately disputed the results. Now I hear the supporters of the Jubilee Coalition asking Kenyans to move on. The IEBC has even gone a step further and using taxpayer money is running prime time advertisements asking Kenyans to accept the election results and move on.

They argue that in every contest there is a winner and a loser. Jubilee has even offered Raila Odinga a job in their government. Central Kenya, half of Eastern, half of Nairobi and parts of the Rift Valley believe the game is over and Kenyans have made their choice. They are clearly in a hurry to move on.

Supporters of the CORD Coalition on the other hand will not move on. The Coastal region, Western, Nyanza and the other half of Eastern and Nairobi believe this game has suffered a major foul and only a return match will determine the true winners. An online support group I set up a few days ago got over 1,000 signatures in the first 12 hours.

Most of the people who have signed up as supporters of the PM's presidential petition have one recurring position; they believe Kenya must not be held hostage to another government that has a disputed mandate to lead. I agree with them fully.

The Jubilee supporters who went to the streets in red T-Shirts celebrating Jubilee's victory were replaced exactly a week later by CORD supporters in white T-Shirts, crying out against the theft of CORD's victory.

Even the media that seemed fixated on forcing Kenyans forward seems to have accepted the fact that things are not going as expected. Kenya is today divided right in the middle and will not move forward, at least not as one unit, until the 2013 election dispute is resolved.

Unlike 2007, Raila Odinga has declared that there will be no street protests. Like 1992 and 1997 he has gone to court. However he believes the experience this time will be different because unlike 1992, 1997 and 2007 several things have changed.

First, CORD's dispute is against a president-elect, not a president. This means that the person CORD has taken to court is not a president who is enjoying the benefits of the highest office in the land (despite all attempts to show the contrary by certain government mandarins). Second, street protests and mass demonstrations are not a bargaining option despite Kenyans having a fundamental right to participate in them (and despite the Inspector General's attempts to illegally curtail these rights). Finally, Kenya has a judiciary that is independent enough to be trusted.

All eyes are on the Kenyan Supreme Court and its six judges. This court has the task of proving to Kenyans that there is a better way to settle election disputes than violent street protests. Kenyans and the whole world will be looking at Chief Justice Willy Mutunga and his team to prove that going to court does not end in a 1992 or 1997 experience.

Some might imagine that as a CORD supporter I will only accept as 'justice', a decision in our favour; this is not the case. All I need from the Supreme Court is a process that is transparent enough for me, an ordinary Kenyan not conversant with deep matters of law, to understand how they came to whatever decision they come up with. I especially like having proceedings covered live. I want to see them analyze all arguments fairly and follow the law in adjudicating them. I also want a decision based on the constitution. Once this happens majority of Kenyans, whether they support CORD or Jubilee, will accept whatever decision the court comes up with. Then Kenya will move forward, together.

Over to you, Your Lordships.

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