Voters, reject urge to disqualify aspirants from vying for elections

By Charles Kanjama

I only reluctantly agreed to judge this fascinating political saga. Two separate cases came before me for determination. The first was Miguna versus Miguna, where the acerbic pro-Raila Miguna came face to face with his nemesis, the sharp-tongued anti-Raila Miguna.

The second was Sarah versus Elderkin, where the eloquent pro-Miguna Sarah confronted her relentless rival, the fluent anti-Miguna Elderkin. While Raila Odinga was a central character to both cases, I declined to deal with the more generic case of Raila versus Odinga.

I felt that this was a separate matter that would best be handled together with the equally generic Uhuru versus Kenyatta case at a later date.

The facts of Miguna versus Miguna are as follows. The first Miguna distinguished himself by the vitriol he poured on ODM rivals. At the same time, according to Elderkin, he embarrassed his colleagues by his frequent effusive outpourings of affection for Raila.

The second Miguna, in contrast, portrays Raila as a flip-flopper and yo-yo man, one of the “merchants of impunity: Devious and conniving.” In Sarah versus Elderkin, there was a reversed set of facts. Sarah distinguished herself by her eloquent defence of Miguna as intelligent and well-read, one of the few people she knew who actually read complex legal documents, one of Raila’s best brains.

Sarah praised him; “Miguna patiently winkles out the loopholes otherwise overlooked, and bravely stands his ground against inevitable attacks.” Elderkin though portrays Miguna as an egomaniac suffering from delusions of grandeur, extremely gullible, a source of constant aggravation to his colleagues, a man without brakes, with no understanding whatsoever of diplomacy or political strategy.

Elderkin’s fluent penmanship effectively paints Miguna as a schizophrenic or split personality who may also have been suffering from some obsessive-compulsive disorder. The issues for consideration in this case relate and apply to each of the three protagonists, Raila, Miguna and Elderkin.

First, has defamation been proved? Sarah had privately accused Raila of “spectacular character assassination” of Miguna through conduct that was “primitive and uncivilised and inhumane”. Miguna in turn accuses Raila time and again in his biography, while Elderkin’s attack on Miguna needs no repetition.

They all damaged each other’s reputations, but this would only be defamatory if their allegations were false. The second issue was whether the three parties suffer from self-induced personality disorders that make them unworthy of public trust. Miguna presents a litany of alleged Raila flip-flops in his book, while Elderkin accuses Miguna of various personality disorders.

Yet the contradictions of Sarah versus Elderkin also raise doubt about Elderkin’s own consistency. Due to the parties’ failure to present adequate supporting evidence on the two issues of defamation and personality, I am unable at this point to make any positive finding. I propose to leave the resolution of those issues to the court of public opinion.

The third issue was whether each party acted properly in regard to the central events in the saga, namely the sacking of Miguna, the critical book on Raila, and the critical rebuttal of Elderkin. After agonising on this matter, I side with Miguna and Sarah that Miguna’s sacking was improper.

I also find that Miguna was entitled to pen his critical biography and to disclose any unflattering facts about Raila, since Raila is a politician vying for high public office. But I also agree with Elderkin and Raila that Miguna was not entitled to use malice or “blinding hate-filled vengeance” while so doing. This finding equally applies to Elderkin, who proved herself as inconsistent as Miguna.

To conclude, let me affirm that Kenyan voters have the right to learn about the character, policies, capability, and track record of electoral candidates before making personal choices at the ballot booth. But we should reject the unconstitutional urge of disqualifying candidates from vying for election unless a court of competent jurisdiction has pronounced them guilty of a criminal offence.

The writer is an Advocate of the High Court