I sometimes hate being a lawyer because, i am always inclined to view issues in an overly legalistic manner, devoid of the social and political milieu. I think this is the option the ECK took when it decided to certify the presidential results and as Hon. Orengo states, present a fait accompli. By following the black letter law the ECK simply abandoned its larger responsibility of ensuring that the result was free and fair. In future Kenyans will be asking whether they need to vote, if the ECK cannot guarantee a fair result. I just think the ECK should have scrutinised the tallies and we would all be the better off. In any case, I doubt a Court scrutinising the ECK decision would be prepared to say that the ECK decision was wrong where it led to the correct result being certified. After all the court duty in election petitions is to ensure that the result reflects the will of the people.
I would also like to comment on the so called Live Broadcast Ban instituted by GK. This I can clearly state has no basis whatsoever in law. No law was cited to support the ban nor legal notice issued and published in the Kenya gazette to that effect. In fact, I am surprised that the Media Owners continue to respect it and giving it credence by urging the government to lift the ban. i just think that the Media Owners are finding political cover for their own self censorship and if they were serious about their responsibilities they would continue live broadcasts as the law is clearly on their side. Happily, this issue has been decided and disposed of by the the High Court sitting as a "Constitutional Court". In the case of the Nation Media Group vs the AG (2007), the court invalidated regulations issued by the minister which required prior government approval of films, documentaries, features etc. The court had no difficulty finding that that these kind of regulations were not justified in a democratic society.
Peace, Love and Unity, 2008.