The Constitution not Dialogue will fix our Crisis

Following a tenacious hunt for a mole in the CIA during the cold war ,the CIA arrested America's most nefarious traitor-Aldrich Ames. His collusion with the enemy led to the death of dozens of important informers for the CIA. After his capture during an interview, Aldrich Ames was asked if he thought every great nation needed a great enemy ,for America then , it was Communist Russia. He said in reply that he thought that that was a condemnation of greatness.Reading history dispassionately teaches us that competition between nations ,individuals or political parties often yields advances in the arrangement of our society along with inventions birthed by necessity. A friend of mine eerily suggested that what Kenya needed was a real crisis to jolt us into better appreciating how to better govern ourselves. Kenya feels like it is in a crisis ,but is it the sort of crisis that will chastise us from mismanagement of our affairs in future? Or is it the sort of crisis that simply begets more crisis and suspends the agenda of development? Unlike my friend I am reluctant to wait and find out. We must unlock the political inertia choking our country. There are a few viable ways to achieve that but dialogue is not one of them.

The annulment of Uhuru Kenyatta's re-election by the Supreme Court of Kenya threw our country into disarray. The jubilation of Uhuruto supporters curdled into a sour soul-searching of what went wrong. Raila Odinga's supporters felt vindicated in their suspicions of the credibility of IEBC. They felt rightly justified in their outrage against a stolen victory. It was Raila's final jab at the coveted seat denied him in 2007. International observers of the eminence of a foreign secretary of state for America had to eat humble pie as they heard the cringe of Maraga's ruling as he called bullshit on their opinion of a 'fair and credible election'. Not only did Maraga tame the egos of prominent international observers but he also set a landmark precedent in Kenyan history. Regardless of which side you voted on the 8th of August there was a grandeur about the ruling. For the first time in Kenya, a president ,commander in chief of our armed forces had his proclamation negated by a bench of judges. And despite his bellicose retort there was nothing he could really do but abide by their decision. For a split second every conscious Kenyan came alive to the meaning of constitutionalism in respect to power. Despite the fact that I voted for Uhuru I felt a certain pride in the ruling after my emotions had done their rounds. The ruling was the last answer to the question of whether our Kenyan Judiciary was independent in practice as opposed to a truism inveighed to pay homage to democracy. Whether you voted for Uhuru or Raila one thing literate Kenyans agree on is the realization that our judiciary has graduated from being an apologist for executive edicts to a defender of the constitution. 

If memory serves you right the main difference between 2007 and 2017 was what happened right after the election. Just like in 07 Raila Odinga lamented the evident opacity of tallying results at the National Tallying Centre. At that time the forms were called 16A. This time as opposed to GSU officers barricading the commissioners in a room ,the IEBC CEO did not avail form 34As to Raila's party at Bomas. Just like in 2007 Raila declared that the process was flawed and he was the rightful winner. His supporters demonstrated. But the valve that prevented the demonstrations from descending to wanton violence was the Supreme Court. The difference is as clear as day and night. From the moment Raila Odinga posted pictures of himself bedecked with tomes of documents for the petition something changed. As soon as the proceedings begun both sides of the country suspended their chauvinism and listened to the case of the opposing side. Initially, it was the paucity of evidence by NASA that signaled to Jubilee supporters that this was a slam dunk and that the petition was a mere formality before the swearing in. But aside from casting their vote on the 8th of August, few people knew for certain if there had been irregularities afterwards. After all anything that transpired between Bomas and the cloud servers could only be known to the persons present there.

As the proceedings reached their crescendo Jubilee supporters were buoyed by the mellifluous oratory of their counsel. Patrick Lumumba was waxing lyrical with his poetic punch-line, “Of Small matters the Law knows no cure' pausing ever so clearly for dramatic effect. In hindsight we now know that there was nothing small about NASA's allegations and Maraga administered more than a cure when he warned that he would annul the next poll if he found reason to warrant it. In retrospect Jubilee & IEBC scions of law neglected to appreciate the line of questioning of the Justices. Muite and Ngatia focused too pointedly on 'the numbers' and how NASA had done nothing to present alternative figures to challenge IEBC's version of results. They paid no attention to the fact that the burden of proof could possibly shift to IEBC given that it was the custodian of election materials, forms and all electronic records relating to the actual transmissions. When ordered by the court to present copies of the physical forms along with the electronic records to ascertain whether the numbers used to tally the votes match the forms ,IEBC fumbled around explaining that 'the people in France were asleep' OR 'security features prevent us from accessing that information'. What IEBC & Jubilee lawyers neglected to realize was that the onus of proof had shifted from NASA to IEBC. The question was no longer whether NASA could prove the election had been rigged ,the question was whether IEBC could affirm that it delivered a 'fair ,transparent ,accountable & verifiable election" contrary to NASA’s logical assertions. After all, NASA could not be faulted for failing to present documents in IEBC’s custody ,and neither could IEBC reasonably explain where it obtained synthetic results for 10,000+ polling stations without  the accompanying forms to declare a winner .

IEBC failed to comply with the order thinking that this would impede NASA's ability to prove their case. However, the justices instead of cutting IEBC some slack proceeded to ask pertinent questions. Justice Mwilu begun by demanding an explanation for the difference in total votes cast between the presidential, parliamentary and county government. There was a difference of about 500,000. She proceeded by walking the counsel through the process, pausing to get clarification. She pointedly asked 'if every voter receives all 6 ballots before proceeding to cast each in their respective boxes and chooses not to cast the other five how would the unused ballots be accounted for ?' This is where a recount promised to be nothing but a fool's errand in ascertaining the true expression of the voter's will.

Pheroze Nowrjees submissions are perhaps the last nail that sealed the coffin for IEBC's presumption of innocence. Apart from challenging the literal numbers as the avenue to establish a foundation for a petition Nowrjee deftly dispensed with the notion that elections are simply about numbers. He animated the court with sound arguments about why the process prescribed by statutes matters just as much as the final result declared. Citing correspondence with IEBC chief executive Chiloba, Nowrjee proved that the CEO acknowledged the 'unavailability' of 10,000+ form 34As not only prior to declaration of the winner but even after. The forms were conveniently missing from IEBC headquarters and servers yet they were the ones that contained the numbers that were entered to return Uhuru Kenyatta as the winner. Nowrjee proceeded to read the constitutional mandate of the Returning officer for the presidential election. He damningly listed the legal thresh-hold to arrive at the final result and declare the winner. It is not enough for the Chairman to merely add up the numbers, append them to one form , transfer them to the next ,announce the winner and is said to have discharged his duty. The Returning officer for the presidential election must VERIFY that numbers aggregated into forms 34B have their origin in forms 34A. Which begs the question,if the CEO did not have custody of 10,000 Forms 34A by the time of announcing the results where did he source the numbers from those polling stations to declare Uhuru the winner?  To their horror Nowrjee disturbingly operationalised the meaning of adjectives in a statute. He lent motion to principles that traditionally sounded abstract at best and subjective at worst.

Perhaps the commission was busy doctoring the 10,000+ form 34As to match the fictitious 'statistics’ broadcasted on live television .Perhaps the forms were not altered to match the pre-baked margin of victory for Uhuru’s victory. But having failed to simultaneously transmit scans of 34A along with the numbers what was the likelihood that IEBC could guarantee that those forms were not tampered with between the 6 days they were 'unaivailable'. This is precisely where the Justices verdict was determined against IEBC and its returned candidate. After all no matter how liberal an interpretation of 'transparency' one can conjure, the Justices had to concede that in the end they were slaves to reason. It was agonizing to comprehend the sophistry with which Justice Ndung’u evaded to weigh in on whether IEBC had impugned the integrity of the election by not availing 10,000+ forms 34A to the petitioner before the result was declared and even after.

IEBC had not even challenged the fact that it had failed to avail the documents in question. Even more damning, Justice Ndung’u did not state which reasons from IEBC mitigated an adverse finding against them. It is regal to have a learned bench but in this world besotted with mendacious statesmen like Trump nowhere else do FACTS find more import than in a court of law much less the Supreme Court of Kenya. Facts are the legal equivalent of beacons in demarcating what constitutes truth and what are mere suppositions. Justice Ndung’u adopted circumloquacious argument to build a nebulous monument to Rights as she refused to arbitrate to what extent the right to vote was suppressed by the failures of IEBC to avail 10000+ form 34As to NASA before they moved to court. It is implicit that the meaning of a dissenting opinion is that it is contrary to the majority. However, failure to address substantive facts relevant to a case with such a limited scope of evidence impoverishes her Ladyship’s timbre of jurisprudence.Honestly ,her opinion taunted common sense and I am glad she was in the minority. Justice Ojwang's opinion was convoluted enough to tire and repel readers from absorbing its contents.

Most importantly though, IEBC could not give a plausible explanation as to why 10,000+ polling stations were out of network coverage just two days before the election without citing any authoritative surveys or reports either from a government agency or mobile network operator.In fact 60 days before the poll IEBC had announced through a press conference that 94% of the country had network coverage able to transmit the form and results to the NTC & CTC. What changed in the interim of that time is as good as anyone's guess. One event stands out in particular though. The death of the ICT manager, forgive the euphemism, what I really meant to say was the murder of Mr.Chris Msando.

While there is ambiguity over who sanctioned his murder there is a co-relation between his absence and the transmission failure that conveniently relegated 10,000+ polling stations to a manual system of transmission whereas the rest of the country used the KIEMS kits. Prior to his demise Mr.Msando had bristled with confidence highlighting the robustness of the systems in place. His words were not mere bluster because he had an academic pedigree tested over a storied career. In many ways he epitomized the vision that many African parents have for their children when they send them off to school every morning ,every day. While the investigation has not yet found a motive many presume that it was related to the sensitivity of his job and the integral role that his department played in the process. Presuming his assailants eliminated him to ease the task of their manipulation of the ICT system the tragedy is that the election on August 8th is as good as it never happened. And now that one of our most prolific sons has died ,children denied the comfort of knowing their father and an exercise rendered null and void we ought to have a national introspection. It's not just about the fact that one man is no longer with us. It's the travesty that a man's principle and dedication to do right by our constitution cost him his life. Just like Roselyne Akombe he had previously found work abroad and I bet he thought he'd make a contribution to his country. There are many things our country ought to do to advance our prosperity but punishing its children for doing the right thing and reaching for excellence is to betray the spirit of Harambee. This is not pulling together ,it's forcing a solidarity of mediocrity.

The previous election would have been above board if all polling stations or 94% of them scanned a copy of form 34A and sent it to the National Tallying Centre  & Constituency Tallying Centre SIMULTANEOUSLY. This slight difference would have ensured a transparent, accountable & verifiable election. Without getting the tabulation, declaration and transmission of Forms 34A in a timely and efficient manner the rest of the process is pointless. It's like a house built on mud then using concrete on successive layers. It could work but the integrity of such a building is very suspect if not downright hazardous. Granted those were the events that took place from August the 8th should Raila Odinga proceed to participate in a repeat election where he perceives that the same secretariat is untrustworthy? Raila has clearly decided not to take part in such a charade of a coronation purporting to be an election. 

On the other hand Uhuru Kenyatta and his running mate insist that they will not budge an inch in as far as prompting IEBC to implement the irreducible minimums proposed by the NASA coalition. Raila insists that there will be no election .Uhuru promises there will be enough security to ensure the safety of those who choose to go vote. To add spice to the drama as if Kenya were House of Cards Roselyne Akombe , a commissioner resigns and exposes the toxic partisanship at both the Commission and the Secretariat. She laments the violence meted against poll officials in Raila's strongholds during the training exercises. Without fundamental changes at the commission Akombe infers that there cannot be a credible election on the 26th taking into account the constraints of time and the national mood. To put in context ,nothing Akombe has said has been negated. In fact the Chairman gained the courage to confess that he was 'under siege' and prevented from instituting changes that would guarantee a credible election. He urges the two politicians to desist from meddling with IEBC and insists the country needs a political solution. Roselyne Akombe is also of the same opinion. To drive the point home she insists that the two leaders cannot put their ambitions before the interests of Wanjiku. 

Let's Talk  

William Kabogo ,Martha Karua , FKE,  civil society among others invoke the salience of a dialogue instead of the brinkmanship at play. They opine that maintaining hard-line stances will lead to a repeat of 2007. Already Kenyans have witnessed the assault on IEBC officials not by ordinary civilians but by Senators from Raila's party. Kenyans have also witnessed unwarranted use of force by the police on opposition supporters. Regardless of where you stand in the debate there is no explanation or excuse for why children should be shot at with live ammunition or get hit with police batons. Even in the case of baby Samantha the officer should have known that a woman inside any house could possibly have a child on her back or elsewhere near her person. It defeats reason why any parent should watch their child die in their arms much less in their mother's simply because a protest has to be quashed.The officers could have easily taken her into custody or the husband. In a country governed by laws one has to wonder if Nyanza Kenya will ever feel like equal citizens under the stewardship of Uhuru Kenyatta.

Despite the noble intentions of those who prescribe dialogue between Raila Odinga and Uhuru Kenyatta as a solution ,I respectfully disagree. The notion of dialogue gives the pretense that the two leaders have not been communicating with each other. It is as if to say that the months of campaigns, public proclamations, utterances and actions happened in a sphere where one party was oblivious of the other's actions or reactions. That Raila and Uhuru should sit down and talk ignores the fact that Uhuru said there'd be no nusu mkate and Raila replied in a rally that Uhuru had stolen his full loaf and wants Raila to go beg him amrudishie. In light of Akombe's resignation Raila reiterated the virtue of calling off the election ,William Ruto made a point to say that it doesn't matter who resigns ,we'll have the election on the 26th. Raila Odinga sneaked in a last word by saying that on the 26th this country would see the mother of all demonstrations. Let’s have a dialogue they say-what have we been witnessing if not dialogue? Incessant headlines highlighting the thrust of Raila & Uhuru’s terms have saturated news media to the irritation of Kenyan audiences. The two live in one country and one cannot possibly suggest that either candidate shuts their ears in juvenile rebellion when he hears the other speak.

The definition of the word dialogue is a conversation or discussion to resolve a problem. It does not limit dialogue to people seated together although that image comes to mind.No ,two people may not even be in the same room but I guarantee you that they can have a dialogue. It arises out of the combination of technology and the nature of our interconnected society. What most of these leaders really mean is that Raila and Uhuru should informally resolve our political, legal and procedural differences and return to Kenyans with an amicable and constructive solution. To pretend that the two leaders do not know what grievances the other shares is to be economical with the truth. Uhuru and Ruto know why Raila won the petition in court.There’s even a digital version of the ruling. Raila Odinga understands why NASA’s irreducible minimums haven’t been fulfilled by IEBC. Raila knows Uhuru's term will end if he 'cancels' the election on Nov 1.In fact he's praying Uhuru falls for it. Uhuru knows that there’s a possibility Raila may beat him if things were adjusted in the IEBC.Uhuru may beat Raila but fail to reach the 50%+1 thresh-hold. In case you don’t believe how a two horse race can fail to have a 50+1 winner kindly look up the US 2016 election. But no, lets hold hands and sing Kumbayah, in fact let’s just get Baaba and Kamwana into a room and dispense with this political friction. They'll get along, for us ,surely they will.

No,not really. For all those liberal airheads out there who believe that every contest can be resolved by getting the competing parties to empathize with their opponents I have some news for you. It doesn't work. The rift between NASA & Jubilee is not a tiff between two friends. It's not just a clash of persons disagreeing over who should be first in line. The clash of Raila and Uhuru is premised on the idea that Kenyans decide who becomes president through the ballot. The winner of that contest by the majority of 50%+1 becomes the commander in chief, head of state and chief ambassador of the Kenyan Republic.

The president discharges his duties on behalf of the Kenyan people through the powers donated to him through the constitution. There are many ways that Kenyatta is empowered to speak on behalf of Kenya or even his supporters. The same applies to Raila Odinga. But cancelling elections is outside the remit of both men. Any mechanism that works outside the constitution because it promises to be expedient for either one or both parties ignores one critical party to the affairs between Raila and Uhuru. And that is the Kenyan people, whenever two men gather to decide the fate of a nation especially by using a framework absent in the constitution one has to wonder ,what reference do Kenyans receive if any during any such negotiation. What boundaries of negotiation do Uhuru and Raila have if they “suspend” elections to have a meaningful sit-down ? Our constitution envisages a systematic and predetermined path to handing over the presidency even when elections are annulled, however the constitution does not empower the president to 'cancel' elections except in a time of war. 

Truth not Peotry

Therefore, those who laud dialog as a way forward must first admit that it contravenes the constitution to rearrange the electoral commission at the behest of two individuals who by virtue of their remonstrations enact changes without reference to the law. The proponents of dialogue should also enlighten us on what meaning the judiciary and institutions in our country have if court orders & existing laws are disobeyed whether collectively or partially. How can Kenyan citizens take back charge of their national affairs when or if Raila and Uhuru consign us to this indecision about a decision?

While the idea of our political leaders talking is seductive I must disabuse its proponents of the notion that Raila and Uhuru will find middle ground if they can just but arrange a meeting between the two of them. Maybe they will but the price we will pay if they do not will be monstrous. The most critical parameters to measure the productivity of dialogue is not proximity but the hard-lines of each candidate. What are Uhuru's hard-lines ? How do we know them? What are Raila's hard-lines? How do we know them? Is it possible to reconcile any without conferring disproportionate advantage to one party. More importantly what does either candidate have to lose if they concede to the other's hard-line?

The most important parameter to determine if we should have dialogue is to define the conflict, and set discrete goals to specify when such negotiations will have served its purpose.

If Raila Odinga and Uhuru fail to reach agreement while having suspended elections what avenue exists to decide the stalemate? If dialogue is premised on the understanding that there will be no elections on the 26th, who will be the president of Kenya when Uhuru's term lapses? If Uhuru's term lapses might NASA's  hard-lines change? How will this affect the prospect of an amicable solution? Will it be likely to resolve Kenya's political crisis then? If the rhetoric by both camps is anything to go by, it is only fair to infer that there is a deficit of trust between the two contenders. Without a genuine belief that Uhuru will make good any changes at the IEBC to assuage NASA concerns what basis do we have to believe that Raila and Uhuru’s dialogue will move this process towards a resolution? None really! This simply protracts our political inertia. 

Realpolitik 

In fact the danger I perceive is that in a closed room both parties will state the actual truth. At this moment in Kenyan politics truth is inconvenient. Truth is inconvenient because it erects a boulder of such proportions that Kenyans prefer to walk around it rather than through it. The truth is, both parties want to win this thing. Jubilee wants to win and they don't care if it's dirty. And despite all pretenses to the contrary this is the most modest inference we can make. NASA also wants to win and won't pass up a chance to challenge the process for as long as they are not declared winners.On Mashujaa day Raila was introduced as president.Whether you concede that one side has some advantage over the other, the point is both men are pulling all the levers available to them. They would summon heaven if they could to intercede and arrange the odds in their favor. 

If indeed both contenders are playing to win then the matter of process, form and legality only matter in so far as how it fits into the path of acceding or retaining power. If the two leaders were to meet outside the constitutional framework they will have no stopgap to limit the scope of their grandstanding. If indeed Uhuru and Raila negotiate and in the process Uhuru's term lapses then we will have a constitutional crisis without the guarantee of resolving the current impasse. There will be no mandatory imperative or deadline to meet any goal. Everything will be on the table, including the very possibility of an indefinite standoff. If the two parties have not activated mechanisms in parliament to draft legislation that will serve as a bridge to haul us over this uncharted territory can we pretend that it will be done when we have no president to sign or veto said legislation?Both parties can easily deliver the 2/3 majority necessary to amend the constitution. Yet neither party has moved a finger where they can legally 'dialogue'.

This also indicates how much political will is lacking along rank and file to negotiate, If Uhuru Kenyatta makes concessions that his junior partners do not accept it will most probably tear the Jubilee coalition apart exacerbating the crisis instead of bringing it to a close. If a negotiation between two is a tussle imagine a room full of disparate voices extrapolating concessions and multiplying and dividing demands and irreducible minimums. They might as well have a food fight and tell us the score wakimaliza.

Ballots and Chains

The true inflection point that Kenyans must elevate themselves to in order to unlock their political gridlock has gone unmentioned by both parties. And this truth has been so deftly sidestepped that its omission looks like a national lie. I suspect that this is the real reason the two sides are pretending to have the best interests of this country when in real sense there are more Machiavellian schemes at play. Three letters!! ICC. This election is not about resources, the economy or fighting corruption, surprisingly it’s not about ethnicity either. It's about a man's freedom. It's about who should bear the burden for the 2007 chaos and if it’s fair for one man to do so alone. 

For those well-read lawyers and political analysts conveniently forgetting this bombshell, I'd like to disturb the waters and remind us that William Ruto was never acquitted at the Hague. His case was vacated, not for lack of evidence or proof of innocence but for one administrative reason. The judges cited failure to co-operate by Kenyan agencies in availing evidence and witnesses. The ruling had a caveat that if evidence would be availed in future the charges would be reopened.

Therefore if failure of co-operation vacated Ruto's charges, it is only logical that if Raila’s regime (If he wins) opens that pipeline of evidence and witnesses , our Deputy President wins himself a one-way ticket to the Hague. Maybe he'll meet Charles Taylor and share a verse or two. And not only would that serve 'justice' for its proponents, it would also eliminate a political Goliath for the next decade after which his career will be dead in the water. Baaba will be confident of a 2022 victory and possibly determine his successor .This country has seen less sophisticated ways of neutering political opponents.If you were Baaba would you hesitate from keeping your opponent busy with litigation as he gives you time and space to consolidate power?   And you think dialogue can solve this crisis? They all know what's popping and someone is not ready to decide his freedom on the coin toss of a free and fair election. Would you?