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Monday, January 21, 2008
Why Raila should prepare for his day in court.

As I have said before, I am 'ODM damu' and I believe that this election was stolen by
Mwai Kibaki and his cronies. I believe that this atrocity is unforgivable and those
responsible should be charged in a court of law, for treason against the Kenyan people
and receive the due penalty. Having said this, I am only open to peaceful means to
resolving this impasse. My objection of violence is based on the same reasoning that
demands that this electoral fraud must be resolved. The instance we perceive options
outside participatory democracy, as viable means to obtain political power, be they
electoral fraud or coercive means, opens a Pandora's Box that offers legitimacy to
illegitimate means. I am of the opinion that ODM should prepare for its day in court. I
know this is an unpopular opinion in my ODM circles, I recently polled some of my
colleagues on this question and a solid 85% were categorically against the idea,
understandably so, because this opinion does not guarantee success and involves
significant risks.

The first risk is one of principle - in going to court, in petition, one is accepting even
though partially, or in interim, the legitimacy of this executive and allowing it to
function, and exercise its full constitutional mandate as appointed by the people, and we
all know this is not the case. The fact that the position that is disputed is the head of
government, head of the military as commander in chief of the armed forces and the
ceremonial leader of the nation, demands that this leader draw his mandate from the
people and this be a true mandate. Therefore, as the court runs its course, we as Kenyans,
ODMers would be in principle accepting this unpalatable fact, even in the interim.

The second risk stems from the fact that the individual, who occupies the sit of the
presidency, even if in interim, wields an inordinate amount of power. This authority can
be used with devastating effectiveness to consolidate power and obliterate any opposition
or challenge to self perpetuation. This was masterfully displayed by Daniel Moi, in the
constitutional ninety days; he was president, after Kenyatta’s demise in 1978. Moi was
able to contain a powerful and wealthy opposition and proceed to rule for more than two
decades, after witnessing the demise or conversion of all his opponents into his
supporters.

A third risk is based in the concern that the executive has undue influence in the matters
before the judiciary. Kenyan history is inundated with a prodigious number of issues that
have met their conclusion, without resolution, in the Kenyan judiciary, through executive
interference. Be it charges of assault by the first lady, to complex cases like Goldenberg.
Amos Wako has reigned supreme, over justice, with his nolle prosequi and I do not know
enough about the law to conclude that there any way to stop Mr. Wako from playing his
trump card again. This position is supported by the AG’s lack of independence. He
recently proposed a way out of the impasse after the elections. This proposal involved
independent tallying of the vote, but one imagines, that the proposal was not cleared by
his superiors, before it hit the media. The proposal was withdrawn a day later, I believe
under the same pressure that Samuel Kivuitu had to announce the flawed results.

A final risk that I see is specific to the Judiciary itself, independent of the Executive’s
influence. We have had a large number of botched cases that are still unresolved and
justice is still pending for the victims. Pinto, Mboya, JM, Ouko are just a few of the high
profile cases, which have not been resolved to the extent where, we can say, justice has
been matted in to an unrecognizable outcome. Thus, it is not clear that these courts can
actually dispense justice. My thoughts are that these courts, where judges and lawyers
wear white men’s wigs are designed to oppress the masses not dispense justice, but that is
content of another article. In addition to this inability of the court to dispense justice the
system places limits on the public debate on an issue that is before the courts. This
restriction presents the threat that all meaningful discussion may be halted, while court
proceedings continue.

Petitions fall in their own class; it does not take much to loose a petition in Kenyan
courts. Kenyan legislators have, out of their own interests, made it very difficult to have a
successful petition. Filing a successful petition requires a stringent adherence to rules and
regulations that precedent has upheld, the following of letter of the law and not the spirit
of the law. The precedents in Matiba and Kikabi’s own petitions against Moi have almost
proved that the incumbent has the upper hand in any petition.

Hey, wait a minute, you must be saying, this article was why Raila should prepare for his
day in court, yet all my arguments are re-enforcing the well entrenched idea that ODM
should stay away from the courts. The primary reason I go into great lengths to outline
the risks is to communicate my keen awareness of the risks involved, in employing this
court strategy to overcome this illegitimate government. My argument is that court
should not be relied on or discarded, but maintained as an option amongst a quiver full of
arrows.

Now, let us explore the current options, with a view of determining who has the ace in
each of the peaceful strategies employed by ODM. I in on no way claim to have their
play-book. ODM may have someone with an infinitely larger strategic acumen; I am only
calling it as I see it.
Mass action has been the predominant approach employed, and it has been fairly
successful, to this point, though at a very high cost. I view success as maintaining this
issue as a problem, and not allowing the illegitimate government to proceed with business
as usual. My assumption is that ODM's goal is to ensure that the countries systems do not
take on a post election stance, pending true resolution. The more Kenya looks like
business as usual, the more the electoral fraud will be an event in the past. But this
strategy can only keep the issue as current in the eyes of the media, international
community, Kenyans and all other concerned parties. There are no power transitions that
have been made in the streets; the streets only apply pressure for other measures to affect
the actual goal. The mass action has taken the form of street protests, these have served
the purpose of wining the perception war, the government, through its police action, is
now widely perceived as a draconian and repressive regime. But who holds the ace in
street mass action? If the Kibaki regime were strategic thinkers as opposed to reactionary
buffoons, they would have stolen ODM’s thunder by allowing the rallies at Uhuru Park
and asked ODM to guarantee that the rallies are peaceful. I would even go further and
have the police provide security for the rally. ODM would have had its national rallies, I
am sure masses would turn up, possibly the one million people Raila promised, there
would have been fiery speeches, then people would go home, and wait for ODM’s next
move. If the rallies turned violent then ODM would be called to account as the violent
faction. Therefore, the illegitimate administration holds the ace and is able to change the
perception dynamics here. The fact that the government has not changed this dynamic has
more to do with the absence intellect, than the absence of the opportunity. Like a brutish
ogre that swats a fly on its head with a club, and dies in the process, this government
shoots itself in the foot, along with innocent Kenyans.

A more direct approach of mass action would be non-violent civil disobedience, imagine
work go slow n critical industries, or all ODM members sit in the roads of all major
cities, on railways and obstruct ports. Police would be overrun with arrests and the cells
will not be able to hold the volumes. This approach allows ODM to hold the ace and raise
the ante at their time and place of their choosing.

Parliamentary pressure is the most viable approach in my opinion. Here ODM have a
both the ace and the constitutional platform to change the illegitimate government. ODM
holds a majority in the house and both the Speaker and the Deputy Speaker position. The
most direct approach would be would be a vote of no confidence in the president,
followed by the necessary dissolution of parliament, then a new election. This would
prove to Kenyans, more so than the world, that peaceful democratic processes can reflect
the 'voice of the people'. The challenge here is good old greed. As much as I love our
ODM Members of Parliament, I know they are not selfless leaders and Raila would be
hard pressed in appealing to the MPs to loose their seats to provide Raila with a chance to
recapture his. The financial cost and the real possibility of losing both your seat and Raila
not capturing the presidency are perceived to be too huge a risk to undertake. The MPs
would rather fight for democracy riding on the backs of mwanainchi as they do on all
other issues. It would be a pleasant surprise if this option is given much thought and
actually carried out. It would warm this skeptic’s heart.
A more plausible parliamentary option would be legislative gridlock - no bills, no
budgets, and no business in the house. The true cost for this grid lock would be on the
Kenyan people, as usual, because this will stop the schools and medical supplies, there
will be government layoff and no contracts - development would come to a halt. But this
like mass action, this approach would not hold any aces against the PNU bandits because
they could dig in and wait this out, and at a certain point Kenyans will want their life
back and this strategy could backfire with long term effects for ODM.

International pressure is the other option available. This option, though effective in
rational environments, where the despot has some goodwill towards his people, and
values his or her image in the global arena, has some flaws. In this scenario the despot
opts to sacrifice his personal gains for the good of the masses and for the good of his
image. Kibaki seems to be to far removed from the cause of the common Kenyan, as
displayed by his Nazi like massacre of innocents, in Kibera and Kisumu. He also appears
to be too morally inept to care about his legacy. But this is not the greatest weakness of
this approach to resistance. For international pressure, one has to rely on a fickle
international community. Who will change their pressure depending on what is politically
expedient in each nation’s political climate, today it will be Syria- tomorrow Burma - the
follow in will be Zimbabwe, depending on what’s hot for the week. ODM should not
place all their eggs in this basket. Further more international pressure will only be
sustained if the tripartite nexus of media, foreign national interests and a champion is
sustained. The media needs to keep the issue alive; Kenya needs to be of some special
interest to the international community; and one nation needs to champion the cause.
These factors are all outside ODM’s control; therefore making the international
community a necessary, but an unreliable partner. Mugabe has shown that inspite of a
most concerted effort by the international community the despot still holds the ace and he
has dig in and has remained in power like a nightmare in an endless night.

This brings me back to why Raila should prepare for his day in court. Taking this issue to
court in petition moves the ace from either Kibaki or Raila and places it on the Judiciary.
A legal strategy does not preclude the use of mass action, parliamentary pressure, and
international pressure in concert with a court petition to this illegitimate I believe with all
the challenges, the courts are a direct strategy that gores at the heart of the problem, the
Kibaki presidency, and has a constitutional framework that can support a positive
outcome and an actual change in government. All other options with the exclusion of
parliamentary action will lead to a suboptimal outcome, as a result of give and take
negotiations. For me a negotiated outcome will not honor the people’s voice of a Raila
presidency, Kibaki as only the member from Othaya, and a shift in roles in parliament.
Without this fundamental shift in the status quo, ODM can not effect the systemic
changes of a Federal system and uprooting corruption systems and structure from the
Kenyan society. Therefore, Raila must do what he is doing but also prepare for his day in
court.