As you read this piece, I plead with you to take the position of affective blindness as well as intellectual neutrality. Read it minus your ethnic lens. Instead wear the hat of applied rationality, the mind of reciprocal reason and the heart of Kenyan gold.
Envisage with me a situation where you believe you are carrying the grossest misgiving about your in laws, who in the meantime have just ruthlessly grabbed the daughter away from you so soon after the wedding. Accruing from the rules of nature, you quickly proclaim your intention to bring the case to the elders.
Question? Do you then keep congregating with every willing and available soul to broadcast your innocence and your in-laws’ injustices while at the same time making it known to the elders that you expect full unadulterated justice short of which you will know the elders must be sleeping with the lions in some den? Suppose even as you engage in your very public rhetoric it turns out that your sweetheart has spilled the beans on your own inequities at your home? What then?
Granted, it is an enshrined constitutional and human right of the Hon. Raila Odinga to seek redress in Kenya’s highest court, but of what use is polluting such an intention of nobility with populist and suggestive antics that bear the mark of an unmarked tractor smoking its way on a super highway and claiming that should it not arrive at its destination in real time with the Ferrari that just overtook it, then the mechanical wizardry of both machines must be re-engineered.
May I state here that I hold brief for none and that I harbor no ill conjecture against the person of Raila Amolo Odinga but beg with me, fellow Kenyans that we remain sane even when we are obviously in top-notch grieve-mode. It does no good to let vitriol flow unabated when we know how fragile this state is. The wounds of early 2008 are still too fresh to nudge; the memories still too raw to tantalize.
With the filing of the petition by CORD, the highly rated men and woman of the Supreme Court of Kenya now have the arduous and onerous task of applying Solomonic olive oil to rationalize and adjudicate on the greviances that deeply divides an already fractured nation. As they spend sleepless nights trying to temper legality with public interest, we must desist from making their work even harder.
The case has its precedents in the equally mesmerizing Supreme Court case filed by Al Gore against George Bush after the 2000 Presidential elections in the USA. There is a striking similarity between that election and Kenya’s 2013 Presidential race.
Just as many Kenyans thought this was Raila’s election to lose, so did the majority of Americans believe it was Al Gore’s election to lose. Many Americans went to bed that night thinking Al Gore had bagged the election only to wake up the next morning to the reality that George Bush had emerged winner. Just as Raila Odinga did, Al Gore opined that the election had been cleverly rigged by his opponent.
Those familiar with the dynamics of that landmark case will recall that Al Gore’s decision to petition the Supreme Court was carefully crafted and weighted against bubbly public interest. For once, the US was not making movies for the world to watch. The US was the movie with the state-wise Florida Supreme Court and the nation-wise Supreme Court the movie sets!
Eventually, two key notabilities emerged from the 2000 USA Presidential camaraderie. First was the fact that two Supreme Courts disagreed on the need for a recount of the Florida ballot for both legal and civil reasons. The US Supreme Court eventually had its way in nullifying the Florida Supreme Court’s decision to recount.
Secondly, the ruling in the Al Core vs George Bush legal war was one of split decision. The Supreme Court Judges ruled 5-4 and again the US went into uproar citing political partisanship of the judges, most of who had incidentally been appointed by George Bush Snr, father to the incumbent.
Fellow Kenyans, we are at a defining moment where our participatory enthusiasm as a citizenry was met with alleged institutional failure. Now we stand the risk of being sunk even deeper into the abyss of failure by a political breed whose language of brinkmanship is testing the already thinning bonds of quintessential nationalism. I think I speak for many Kenyans when I say that the Muthama and Namwamba style of letting loose at a hotspot like Kibera is totally unacceptable in the Kenya we are desperately trying to rebuild.
Granted, the Supreme Court Judges now stand on the threshold of history but the starkest reality is that by entrusting our democratic fate with the judges, we are in effect subverting democracy by subordinating what ought to be a purely political process to whimsical judicial expediencies. After the 2000 Supreme Court fiasco, the entire US population was left reeling from the shameful reality that the decision as to who would lead the world’s most functional democracy had eventually been left to one man (the deciding vote in the 5-4 ruling of the Supreme Court).
A similar scenario is playing itself right before our eyes where the decision as to who our president will be has been left to six fellow Kenyans of the Supreme Court bench. Should they opt against a ruling of unanimity and instead cast their individual vote, it may eventually play our exactly like the US scenario save for the fact that due to the absence of the Deputy CJ, the Kenyan Supreme Court will deliberate this one with an even numbered bench.
If there are any Kenyans presently losing sleep and agonizing intensely, it is the judges of the Supreme Court. One feels overly tempted to pity them because however sharp their legal minds might be, they are faced with the deplorable fact that, very much like the 2000 US presidential dispute, this case is more political than it is judicial.
The law of hedonism dictates that faced with the unpleasant task of making extreme choices, the human mind is always more inclined to take the easier and more pleasurable option. In this case, the collective psyche of the Kenyan citizenry is more attuned to understudying the likely political predispositions of the six Supreme Court judges than their conformity to the principles of legal morality.
Whichever decision the Supreme Court judges make, they will have to live with the unfortunate consideration that there will be either five million Kenyans who will feel thoroughly cheated or six million Kenyans who will be feeling procedurally disenfranchised. When the US Supreme Court delivered it’s ruling in the 2000 case, George Bush supporters were in delirious jubilation even as Al Gore supporters were seething with sulky rage.
In purist lingua, justice is defined as the outcome of a process or pronouncement that leaves both accuser and accused vindicated and content. Sadly, just as was the case in the US in 2000, it is about to dawn on Kenyans that outcomes of the judicial process do not always necessarily bolster the definition of justice.
Dr KEN OUKO is a lecturer at the University of Nairobi.
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