Dear Esteemed Justices of the Supreme Court of Kenya:
The struggle for “justice” will always be contested; no wonder Rajeev Dhavan in The Phases of the Indian Supreme Court has identified seven different and conflicting phases undergone by that institution.
And it is not in India alone where the Supreme Court has been witnessed to reverse itself; in the United States of America, the Supreme Court there, for instance, repudiated its 1896 ruling in Plessy v Ferguson when in 1954 it rejected the idea of “separate but equal” in Brown v Board of Education.
Today, however, my point on “justice” is non-legal: you should have taken judicial notice of the fact that the 1997 elections in Kenya were stolen.
Moreover, you should have taken further judicial notice that the 2007 Kenyan elections were also stolen. And because of this, you should have made the observation that it cannot be expected that these results would be accepted by any right-thinking members of society.
This point is neither frivolous nor flippant: it is, instead, fundamentally and importantly critical. For it is inextricably woven to a vital aspect of your identity: your place in history.
By speaking of your place in history or historical place is meant your future standing as part of Kenya’s history following a critical assessment of your performance; you can actually influence, define and shape this by the way you yourselves define and execute your own purpose and mandate.
My teacher and mentor Chief Justice (CJ) Willy Mutunga has articulated your self-vision as a “source of a new, highly competent and indigenous jurisprudence” through “the rigorous but creative use of the basic values of our constitution, indeed through the judiciary’s becoming the embodiment of those values.”
And the constitution is important here because as the CJ notes, “I am convinced our constitution decrees our status quo as unsustainable and unacceptable.
It many ways mitigates this status quo because the Kenyan people did not want to overthrow but implement a social contract…The constitution heralds a new order. It is an attempt to unite the nation around notions of fairness, equality and inclusiveness, of power genuinely vested in the people.”
As you go about developing this new indigenous jurisprudence that departs and disconnects from the status quo and also incorporates and is driven by our constitutional values, it cannot be that you are unfaithful to a fair rendition or narration of Kenya’s history.
After all, what then would “notions of fairness” be about? In your court during the 2013 election petitions we, however, saw go unchallenged by yourselves a one-sided, lop-sided, topsy-turvy, self-interested, belligerent, bellicose and brazen attempt to re-write Kenya’s electoral history.
It was submitted by Ahmednasir Abdullahi, counsel for Ahmed Issack Hassan, the Chair of the Independent Electoral and Boundaries Commission (IEBC) that “…at the end of the day…[what]we are merely addressing [is]a common African political phenomenon that is defined by the wilful refusal of political contestants to accept the result of elections…In 1997 when he lost the presidential election and came third…He cried loud that his votes were stolen…In 2007 he finished second and refused to accept the result.”
In short, through oral and written submissions, the Chair of the IEBC was suggesting that the problem was not that the 1997 and 2007 elections were not free and fair; rather it is that the petitioner Raila Odinga suffers the debilitation of being a chronic and serial rejecter of results that do not favour him.
It could be that the IEBC Chair is suggesting that contestants should accept results whether or not they are free and fair. However, it could also be the case that he is suggesting that the 1997 and 2007 elections were free and fair. Both, I would suggest, are a ridiculous and absurd travesty to “notions of fairness”.
Chapter 9 of Chief Justice Willy Mutunga’s seminal work Constitution-Making from the Middle is titled “The Election is Stolen Yet Again!” Willy argues, “An election that is not free, fair and peaceful is a stolen election…
In a recent paper, Kibwana and Mutunga have proceeded to…determine whether, given the government’s response to Kenya’s democratisation project, the general election of 1997 would be free and fair.
Their verdict was that…the forthcoming elections were already flawed and there was no need to wait until December, 1997 to make that judgment.”
Similarly, contributing to a general study and analysis of the 1997 elections, leading Kenya election observers and analysts Francis Ang’ila Awya and Francois Grignon observed, “The overall assessment of the electoral commission’s performance prior to the 1997 polls might not appear as damning as it was in 1992, but the end result was undoubtedly the same…the ECK failed to provide a ‘free and fair’ environment and, therefore, failed to honour its duties towards the Kenyan electorate…As biased as ever, then? Maybe not, but biased enough to once again betray the Kenyan electorate. There is no middle ground here…Kenyans deserve better than mitumba (second-hand) elections.”
With regard to the 2007 elections, the Independent Review Commission (IREC) headed by Justice Kriegler concluded in its executive summary, “The integrity of the process and the integrity of the results were so gravely impaired by these manifold irregularities and defects that it is irrelevant whether or not there was actual rigging at the national tally centre.
The results are irretrievably polluted.” In other words, “…although there is room for honest disagreement as to whether there was rigging of the presidential results announced by the ECK, the answer is irrelevant, as (i) the process was undetectably perverted at the polling stage, and (ii) the recorded and reported results are so inaccurate as to render any reasonably accurate, reliable and convincing conclusion impossible.”
Yet, in both 1997 and 2007, someone was declared the winner of these elections – which clearly is electoral theft from the other candidates who contested these elections as well as the people of Kenya who were the voters. How, then, is anyone supposed to have accepted these results under any “notion of fairness”?
Mugambi Kiai is the Kenya Program Manager at the Open Society Initiative for Eastern Africa (OSIEA). The views expressed in this article are entirely his own and do not reflect the views of OSIEA.
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