Thursday, January 31, 2008
Tuesday, January 29, 2008
Saturday, January 26, 2008
I was surprised to read in the East Africa Standard of 3rd January 2007 remarks attributed to the Chairman to the effect that the Law Society of Kenya (LSK) will file an election petition on behalf of all Kenyans to challenge the presidential results. While the Chairman has the right to express himself on matters of national interest, I think he should exercise great circumspection in pronouncing the LSK position on a matter as grave as that facing the country without proper consultation of the Council of the LSK and its members.
As is now evident the Government of Kenya position represented by H E Mwai Kibaki and supported by the Minister for Justice and Constitutional Affairs is that parties seeking to challenge the presidential election results should seek legal redress in the law courts. This position ignores the reality of the matter, it is not about legality, it about legitimacy and justice. It has been said that we must respect and trust our institutions to do their work but it is now evident that one institution, the Electoral Commission of Kenya, has already failed in ensuring free, fair and transparent election. Any solution now must lie within the realm of politics and must be resolved politically.
I think we all agree that from a legal point of view, the Attorney General is right when he states that only the court can annul the election results upon presentation of a petition. Several factors, which I shall amplify, militate against the use of the legal process as a means of redress.
- Once an Election Petition is filed, all matters relating to the challenging the election results become SUB JUDICE. As the rule has sometimes been interpreted in the extreme sense it means that parties cannot talk about the election results. It may also mean that the full breath and depth of election result cannot be ventilated outside the court process. In short it may mean that we all SHUT UP! The limits of the sub-judice rule in
has not been fully explored and indeed remains arbitrary. However, I am sure those who seek to block an extra judicial examination of the election process will call for its full application. This is the trap to be avoided at all costs. Once the issue is in court, it is removed from the subject of public discussions. How can the current crisis be resolved if the ghost of the just concluded election is not laid to rest? Kenya
- We do not have the luxury of time. As we all know an ordinary election petition relating to a single constituency can take five years to determine. An election petition, heard by three judges, where evidence is taken in long hand, where every vote and tally is subjected to vigorous challenge by a battery of lawyers representing each party, based on a hotly contested election is not a matter that will take three or six months to finalise. Factor in several interlocutory appeals that may arise and the substantive appeal itself and one can only conclude that five years would be too short a time to determine the petition. Simply stated, those who want the avenue of legal redress in court would simply like to run the clock on us.
3. What has come out through this process is that the state machinery has been used to manipulate votes and the counting process. Do we know where the Returning Officers of the disputed polling areas are? Is their security guaranteed? Will they be able to testify without intimidation and interference? Are any of these people willing to risk their lives for the greater good of Kenyans? We now hear reports that the ballots and tallies have not been secured and are still being doctored. Won't we be presented with another fait accompli in court? In law, the petitioner has the burden of proving that the election was rigged. If the election materials have not been secured or have been tampered with then wouldn’t this render the case moot?
4. In court there can only be a winner and a loser and the court's judgment is only as good as the pleadings filed, the evidence presented and the law applicable and the legal arguments presented. In this respect, any court decision will be limited to the tallying of votes or counting of ballots whereas what we need is to examine the whole election process and determine what led to its failure. The court process cannot lead to this. In fact, it is conceivable that the court may hold that the petitioner has not proved its case to the required standard or that the petition is incompetent for one or more reasons or certain evidence may not be admissible. Are these the kind of decisions Kenyans can live with? Keep in mind that this is an election whose result has been impugned by impartial election observes politicians from both sides of the political divide, the Attorney General and the public. Would the public accept a court verdict that declares that the election was free and fair or that it was devoid of irregularities?
5. Whereas I have profound respect for the jurists that occupy the Kenyan bench, one experience has taught us that even men of great standing and respect like Mr Kivuitu, the Chairman of the ECK, a lawyer of long standing can buckle under enormous pressure. What makes us think that the judges who will preside over the election petition cannot succumb to pressure form whatever quarters to deliver a specific result?
6. In my view, the current spate of violence and destruction of property is the culmination of many political, social and economic issues that have been simmering beneath the surface which have remained unresolved over the years. It is foolish to think that the issue of “tallying votes” can be separated from the broad issue of justice, truth and reconciliation.
In view of what I have stated, I honestly believe that the courts will not provide a solution to the current crisis. What we need is a political solution that resolves the issue of legitimacy and justice. The solution needs to deal with structural problems relating to the conduct of elections in future and providing a road map for the resolution of such disputes in future. A court of law cannot provide and will never provide this.
I sincerely believe the Council of the LSK will move with speed to provide a forum in which lawyers will not only provide the necessary legal input that is necessary to back up any political solutions but also contribute to the political solution necessary to resolve the current crisis.UPDATE 1
Whether we agree with the election result or not, I think there has been doubt raised about the integrity of the process and the current ECK exercise is open to criticism in that it is being done without independent verification.
The killings and violence in the country need to be investigated fully to determine not only who is to blame but to deal with the root causes of such acts so that this situation does not recur in future. One of the issues to be dealt with in due course is the role and failure of our national institutions. One such institution that calls for investigation is the NATIONAL SECURITY INTELLIGENCE SERVICE (NSIS). We have an intelligence service duly established under the National Security Intelligence Service Act, 1998 with a mandate to identify threats against the security of Kenya, collect and analyze intelligence on these threats, and advise the Government accordingly through appropriate intelligence reports
In the 70's and 80's the Directorate of Security Intelligence so far as we knew existed to protect the president and spy on Kenyans who were not towing the One Party Baba and Mama Line. After recent events I have wondered whether the current situation was known or even contemplated by the NSIS. If indeed, the violence was planned, wasn't the NSIS aware? Was GoK duly informed? If it was, why didn't GoK take action to avert or minimise the current catastrophe? In fact, under s. 7 of the Act, the Director General is the principal advisor to the President and the Government on matter concerning security and he reports directly to the President. If this is the case then, did the President know what was being planned or was going to happen?
It is interesting to note that the Ugandan intelligence services knew about the looming post election violence but it appears the political leaders decided to downplay or ignore the reports for fear of offending Kenya with the result that Uganda was unprepared for the aftermath of the post election violence in Kenya.
Thursday, January 17, 2008
President Bingu wa Mutharika has praised Kenya's 'illegitimate' President Mwai Kibaki and insinuated at Malawi's opposition parties promising to apply what he described " Kibaki tactics" during the 2009 general elections in order to hold on to power.
A source who attended Mutharika lavish New Year's party organised for his relatives and Democratic Progressive Party (DPP) officials at Sanjika Palace on Monday, heard the President talking to Minister for Presidential and Parliamentary Affairs, Davis Katsonga and acting DPP Secretary General, Hetherwick Ntaba.
"After getting sloshed, the President was loudly heard telling [Davis] Katsonga and [Hetherwick] Ntaba that he is resigned to do ‘a Kibaki’ in 2009 polls," said our source, opting for anonymity.
The Malawi leader chose Malawi Electoral Commissioners – charged with the task of holding a free and fair 2009 general elections – without consultations with the opposition parties, a move aimed at having commissioners who can easily be twisted by his orders.
The opposition Malawi Congress Party [MCP] and United Democratic Front [UDF] cried foul and obtained an injunction restraining Mutharika from swearing in the commissioners for clearly breaching a constitutional provision.
The High Court Judge Healey Potani is yet to pass a ruling on the matter.
Kibaki, sworn-in for another presidential term in Kenya’s disputed polls, did a similar move by single-handedly appointing a 22 man electoral commission which has failed the democratic process plunging the country into turmoil.
Mutharika – a product of rigged votes - expects stiff competition next year's polls from formidable candidates in MCP's John Tembo and UDF's Dr Bakili Muluzi – former two-term state president.
Malawi is expected to hold presidential and parliamentary polls in less than 17 months time but stakeholders have complained of poor preparations and lack of levelling the playing field with public radio and television favouring governing party.
The Malawi Electoral Commission currently has only one commissioner, Chairperson Justice Anastasia Msosa, whose term expires this year. The Commission currently has no meaning, as it cannot make any decisions sanctioned under the Presidential and Parliamentary Elections Act, which requires seven commissioners to form a quorum.
"The remaining two commissioners had their term of office expiring in November. This means we only now have the chair. Once their terms of office come to an end, the commissioners stop working, that is the position now at the commission," Chief Executive Officer David Kambauwa told Parliament's Public Accounts Committee last month.
The Commission has failed to hold by-elections in many constituencies as they fell vacant due to lack of the required numbers though the Constitution provides a window period of 60 days for the same to be held after falling vacant.
"This is why the commission has not conducted by-elections up to now, it is because of lack of a quorum. Everything being equal, we were supposed to hold the by-elections after the funds were provided in July 2006," Kambauwa said to the Committee chaired by Respicious Dzanjalimodzi and deputised by Aleke Banda who expressed concerns.
Tuesday, January 15, 2008
Wednesday, January 09, 2008
I haven't been able to post for want of time and pressure of work. Events are now moving a pace of on the political front, I can barely keep up;
H E Kibaki invited Raila Odinga and others for a meeting this Friday. He then turns around appoints a new Vice President and Cabinet.
Parliament will open officially on 15th January 2007.
The ODM rallies countrywide scheduled for 8th January 2009 have been cancelled until further notice.
President Kufuor of Ghana comes in to head mediation efforts. Hon Martha Karua on HARD TALK BBC and Al Jazeera, states that in fact his is not here for mediation. If not what is he here for?
Appointment of Uhuru Kenyatta and others to spread the GoK message out there.
Our Government Propaganda Chief, Dr Alfred Mutua, tells us that President Kufour is here to take copious amount of tea with the President.
I think the government is rushing to create an aura of normality. As long as things look normal in Nairobi, then all is ok and all will be ok. It is hoped that the middle and chattering classes will lose interest in the election issue and get on with their lives.
The best and most effective legal avenue for ODM to continue its battle against a stolen election is in Parliament, where so far, it seems to command the numbers, albeit narrowly. Its strategy must be to hold on members at all costs. But Kenya, being what it is, the proof will be in the pudding. I am sure there is aggressive negotiation and arm twisting to ensure that the government side gets a majority. Some of the tactics, I am sure will emerge are;
Ministerial appointments. All the members of the smaller parties can be given posts of Assistant Minister, if necessary. Non parliament members will be given other government positions.
Use and abuse of legal process to revive past prosecutions, debt collections and high-pressure use and or threat of use of the legal process.
I can bet that the next surprise will be that the PNU/ODM-K axis will win the speakership. One should never under estimate the power and resources of government to achieve its desired end. After all, election for the speaker is a numbers game just like the election. I am sure whoever is doing the shopping spree has a huge budget to shop for the numbers .......
Sunday, January 06, 2008
Saturday, January 05, 2008
I finally had a drink with some of my workmates at Psys. It was packed as the usual Friday night. We exchanged the horrifying stories we had heard from relatives and friends. What is clear is that the full story of all the atrocities out there is not being reported. The situation in Kisumu, Kakamega, Kisii and Eldoret is bleak and it will take many years to repair the damage to the communities affected. In fact any attempt to gloss over these issues will only result in more problems in future.
Anyway I had my beer but felt so gulity about having one with all the death and destruction all round that I left ......
Thursday, January 03, 2008
Hon. Mwai Kibaki having been declared duly elected as President of Kenya, only the election court can nullify the election if a case is made out in the petition filed by the petitioner. However, in view of the allegations on either side that their votes have been rigged, the fact that some Commissioners, including the Chairman of the Electoral Commission of Kenya questioning the accuracy of the number of votes declared and taking into account that this crisis has arisen because of the perceptions that the presidential results were rigged, it is necessary, and here I agree with the Catholic Bishops and others, that a proper tally of the valid certificates returned and confirmed should be undertaken immediately and on a priority basis by an agreed and independent person or body. In as much as under Regulation 42(2) of the Presidential and Parliamentary Election Regulations the relevant Forms 16 and 16A are documents that can be made available for inspection by any member of the public, such an exercise can be undertaken without a court order and without an election petition having been filed. Such an exercise will go a long way in assuaging the inflamed passions of people.
From a purely legal point of view, the Attorney General is right in stating that only the court can annul the election on a case made out by the petitioner. As I will continue to state ad nauseum this is a road fraught with problems. As I write, it is now evident that election material is being interfered with in order to present a fait accompli.
The second point Amos makes is the need for a proper tally of valid certificates be undertaken by an independent body. The problem with is that it begs the question to what end. If he has already concluded that the court process is the only one that can reverse the decision of the ECK in declaring the election result then what is the need for having an independent verification without a remedy. What would happen it if found that the tallies and election material have been tampered with to the extent that it sould be difficult to know the winner of the election. Would the body declare a fresh election? What would happen if the independent verification revealed that the ODM candidate actually won the election. Would such an body declare the person president? Independent verification of the tallies and indeed the audit of the entire election process must be part of a larger political settlement.
Remember that that Amos is the Principal Legal Adviser to the government. He was at the President's swearing in smiling and sitting next Chief Justice and the President. Obviously, he had given legal advise and confirmed that the process leading up to the swearing in was in compliance with Constitution and our laws. His statement, therefore, provides a window into the thinking of GoK. In fact it has been reported that H E Mwai Kibaki indicated that he was ready to appoint members of the cabinet from outside PNU and its associated parties. He states;
........... It is of necessity that the PNU, ODM, ODM(K) and other parliamentary political parties enter into a constructive dialogue for a political solution. Such political decisions can include for example the formation by the President of a Government of ALL parliamentary political parties anchored on an agreement to be made public.
What is contemplated in is the formation of a Government of National Unity (GNU) anchored on an agreement to be made public, i.e., a Memorandum of Understanding (MOU). Haven't we seen this before? Will it work this time?
President Kibaki has finally given a press conference. I haven't seen that on TV yet so I cant comment substantively. Good on assurances of law and order but no road map provided to resolving the election issue.UPDATE I
- There are reports that election materials (FORMS 16 and 16A) are still being tampered with.
I would like to commend KISS FM for the work they are doing. Props to Carol Mutoko and Nyambane for the good work they are doing. To the other radio stations, think outside the box.
I was in town in the city yesterday a a queue of other Kenyans trying to get some airtime. The conversation revolved around what the GoK was doing to resolve the current impasse. The general view was that the President should have more visiblity. Everyone hated those pro-forma and overly formal statements by the President calling for peace etc without dealing with the election issue. His handlers should take note.
Yesterday, the President is said to have met MPs to discuss peace intiatives. I am surprised that there was no live coverage or first hand coverage by the press. In fact there was no televised footage of the President in what I think would have been an informal setting. Other than speaking through surrogates, who do not seem to command public respect, he should come out with his clear thoughts on how he thinks the impasse should be resolved (Correct me on this if I am wrong).
It is irresponsible for GoK Ministers and others to make wild and unsubstantiated claims of Genocide. While violence and criminal activity is now rampant, unsubstantiated claims of Genocide merely raise the political temparatures and detracts from the issues we are trying to seek solutions to.
Hon Odinga and his team should farm out to their constituencies to pass the peace message and urge calm. Press statements from the comfort of posh Nairobi hotels will not do. They should also do something to mobilise humanitarian relief to their constituencies that are most affected.
A friend of mine has just called me to tell me that the whole of Nyayo Highrise along Mbagathi Way has just been blanketed with teargas. This is surely an over reaction! Can the police exercise some restraint.
I know many of us feel helpless in this situation but we can contribute in our own individual way. I would suggest the following;
Give RED CROSS food and clothing. This can be dropped at the following points Red Cross Offices off Mombasa Road, Nakumatt Outlets, KISS FM Offices (Lions Place, Waiyaki Way , Westlands) and CAPITAL FM (Lonrho House). You can purchase food stuffs like unga, beans, salt, cooking oil and UHT milk and drop them in the collection boxes. Imagine if each one of us could spare at least Kshs. 1,000/- what a difference that would make. Remember there's more of us than then.
People need to keep talking. It is frustrating not to be able to talk to your relatives and friends not only to find out how they are but to also to VENT. Please SAMBAZA airtime to those who don't have.
Be kind to police officers. They are just trying to maintain order. They too have relatives and friends caught up in the violence.
Those of you who know anybody who is anybody, call them, tell them we need to resolve this issue like NOW.
I have said and will say again, the courts will not provide a solution to the current crisis. What we need is a political solution that resolves the issue of legitimacy and justice. The solution needs to deal with structural problems relating to the conduct of elections in future and providing a road map for the resolution of such disputes in future. A court of law cannot provide and will never provide this. It will only tell us the winner and the loser and that is not what we need at this point. It therefore comes as s surprise that the Chairman of the Law Society of Kenya (Disclosure; I am a member) has announced that the Society will file an Election Petition on behalf of all the Kenyans to challenge the elections results. I have, in my previous posts, alluded to the problems inherent in the cess pool that is the law courts.
However, I did not discuss one important implication of the filing of an election. Once an Election Petition is filed, all matters relating to the challenging the election results become SUB JUDICE. As the rule has sometimes been interpreted in the extreme sense it means that parties cannot talk about the election results. It may also mean that the full breath and depth of election result cannot be ventilated outside the court process. In short it may mean that we all SHUT UP! We all become slaves to the court proceedings. The limits of the sub-judice rule in Kenya has not been fully explored. However, I am sure those who seek to block an extra judicial examination of the election process will call for its full application. This is the trap the GoK is setting up. Once the issue is in court, it is removed from the subject of discussions. How can the current crisis be resolved if the ghost of the election is not laid to rest? The GoK and PNU strategy is to direct the issue of the election to the courts. The PNU and Gok position is amply demonstrated by Uhuru Kenyatta who states, “We won the elections and whoever feels aggrieved should to court and we will be available for the response. It's not our responsibility to initiate dialogue.”
Wednesday, January 02, 2008
- Do we know where the Returning Officers of the disputed polling areas are. Is their security guaranteed? Will they be able to testify without intimidation and inteference? Remember the case sad case of DAVID MUNYAKEI. Is any of these people willing to risk their lives for the greater good of Kenyans.
- Has the official ECK tally of votes been published in the Kenya Gazette or other media? Will it be interfered with? The longer this takes the greater the risk.
- Have all the election materials been secured. Remember, in law, the petitioner has the burden of proving that the election was rigged. If the election materials have not been secured or tampered with then this would render the case moot.
- Now that the Commonwealth Observers, European Union Observers, the Electoral Commissioners and many other have cast doubt on the election result, can Kenyans accept a court verdict that say the Election was proper?
Would politicians please spare us the legal mumbo jumbo and go right to resolving the political dispute at hand.
Tuesday, January 01, 2008
I have just watched Hon Martha Karua, the Minister for Justice and Constitutional Affairs give a press conference. The fact that she is close to HE Mwai Kibaki seems to give an indication of what the GoK position is. First, she is irked by the fact that some Commissioners could express doubt on the results as certified by the ECK. Secondly, she is very clear that any dispute regarding election results should be resolved by the court and the courts alone.
In view of what I have stated previously, she is wrong to think that the solution to the current problem is only legal. The problem is both legal and political. It is about legality and legitimacy. Its about justice. The EU and Commonwealth Observers have cast doubt on the election outcome. Some ECK Commissioners have also cast doubt on the whole process. In court, there is always a winner and a lose. The current situation needs no winner and losers and the court may be the institution least able to resolve the impasse if left to its own devices.
On a separate note, anyone knows who H E Kibaki's handler's are? I think they are doing a very poor job. These guys seem to be living in a bubble! I am also disturbed by GoK's “Law and Order” approach to the current situation. Yes, it is important to maintain law and order but GoK should take initiative in providing relief and alleviating suffering to those distress. For example, GoK could name a Cabinet Minister or a committee composed of respected Kenyans to aggresively lead and co-ordinate the relief efforts if not anything else. There is also no indication of what steps GoK is taking to resolve the political impasse. This should happen fast, very fast.
For a legal practitioner like me it is not difficult for me to understand the frustration and contempt, Hon Raila and the ODM have for the judiciary. The Constitution contemplates that all electoral disputes regarding the Presidential and Parliamentary elections will be resolved through the courts. But such a process is not only legal but also political and even the judges who are supposed to apply the law without fear or favor, are political animals judging real cases in a political context. If past experience is anything to go by, Presidential Elections petitions are the mirror through which our experience is judged. Election petitions are a political contest and anyone who ignores this is a fool.
Any party who challenges the sitting President or Member of Parliament is presented with a fait accompli and our courts have held repeatedly stated that they will not interfere with the election process except upon presentation of a petition in accordance the law after the elections have been held and declared. This presents an up hill task for any petitioner. Such a task is not only legal in nature but also political. Remember for example, a petitioner needs to collate evidence and with state machinery backing him, the president can make evidence disappear or intimidate witnesses given the enormous resources available to the sitting president. If the state machinery was being used to manipulate the tallying process, it would be naïve to think that the president or his agents would not manipulate the evidence to be presented to the court. What is not even being addressed now, is what efforts are being made to secure the ECK documents etc.
The third point I wish to make is that election petitions are notoriously difficult and technical to prosecute and defend. This are of law is wrought with a myriad of technical rules that must be followed to the comma and any stumble will lead to a whole petition being struck out hence denying the public access to the real and substantial issues of the case. Unfortunately even the best legal practitioners keep tripping over the technical traps in strewn all over the legal process. My immediate concern however is that the bench and the bar has lost the benefit of persons of experience in this area of law. This has been a result of overall politicization of the process and pre-ordained outcomes. This can be seen through the past cases (links are down);
The case of Kenneth Stanley Njindo Matiba vs Daniel arap Moi was decided against a background of massive rigging allegations in the 1992 and also the fact that this was first presidential election petition in Kenya. The political stakes were high as the election was the first multi party election in Kenya after the repeal of the infamous Section 2A of the Constitution. The case was struck out on the basis that the petition was not signed by Hon Matiba himself but his advocate. On such a technical decision, Kenyans were denied the right to know what actually happened.
The case of Mwai Kibaki vs Daniel arap Moi after the contested 1997 elections. It was decided on the basis that President Moi was not personally served with the petition. In my view, this case was a case of tortured reasoning because all the previous decisions, both local and from other commonwealth countries, with similar legislation, were clear that the petitioner had several options of service of the petition including service through the Kenya Gazette. What is now interesting, is that the same judges who made the decision while not expressly overuling it have tried to mitigate its effects without saying that they were wrong.
It is against this background that the distrust of the judiciary is understandable. But one area in which the Judiciary has expertise in is running the clock. The petition may be filed this month but it will take five years to finalise. Strange but true ...
I also think the legal process can provide a window of opportunity for resolution of the current impasse. Say a petition is filed contesting the election, the parties could agree to record a consent decree to have the results tallied and thereafter the court to declare the winner of the election. This of course assumes that the losing party will agree to initiate the process. Any chance of that happening?