The Second Lot of Suspects Appear in the ICC!

Uhuru Kenyatta, Francis Muthaura and Hussein Ali made their first appearance in the ICC on 08.04.2011 amid renewed warning from the Court that they observe the conditions of the summons. The Presiding Judge, Justice Ekaterina Trendafilova spoke plainly this time round cautioning the suspects against engaging in utterance that could jeopardize peace in Kenya. She said that the Court would not hesitate to replace the summons to appear with warrants of arrest. 

At the same time, the Prosecutor had applied for harsher conditions that would require the three to be appearing in person before the judges at least once every six months. He also sought an order to ensure that the suspects refrain from making any public statements that contain or can be construed as containing “an open or veiled threat to actual or prospective witnesses or victims”. In addition, they should submit complete financial information. The defence lawyers too requested the Court to order the Prosecutor to restrain from making what they termed as “extra-judicial” utterances at press briefings.  The Court promised to make its decision on the matter raised.
 

The hearing for confirming the charges against the three will be held on 21.09.2011. During yesterday's proceedings, the defence lawyers for the accused actively engaged the Court demanding that the Prosecutor provide the suspects with the evidence he presented to the Court on 15.12.2010. The Court ruled that during the planned conference on April 18, the prosecutor will give an estimate of documents he wants to use to prove the cases, number of witnesses, no of witness statements, indication whether he intends to involve victims and his many witnesses he intends to keep confidential. In addition, the defence teams will be required to indicate whether they want to call witnesses and the documents they intend to use.

With home-coming reception rally planned by the supporters of the two presidential candidates, William Ruto and Uhuru Kenyatta and their declared onslaught on their main presidential candidate rival Raila Odinga, it will be a difficult or impossible balancing act to require the two to tame their language. If Raila were to utilise this opportunity to deride his opponents, then Ruto and Uhuru could easily argue that the ICC is being used to silence them and therefore ‘working for Raila’.

The First Case against Kenyan Suspects Opens in ICC

The first case against the Ocampo Six opened in The Hague on 07.04.2011 in a preliminary appearance over events stemming from the 2008 post election violence. The suspects William Ruto, Henry Kosgey and Joshua Sang appeared in Pre-Trial Chamber II before the judges with Presiding Judge Ekaterina Trendafilova from Bulgaria. The Court informed them of charges they face and their rights as suspects. They were not required to plead to the charges because they were yet to be confirmed. The Court fixed the confirmation of the charges to be held on 01.09.2011. Meanwhile the suspects remain free as long as they observe the conditions issued to them before by the Court. The presiding judge also cautioned them against use of inflammatory language in public meetings as it has been reported by the Kenyan newspapers and said that this could constitute a breach of the conditions for the summonses and trigger issuing of arrest warrants.

The spectacle of the suspects in the ICC was a humbling scene for the suspects and those who thought The Hague would never come. The proceedings were brought home to Kenyan thanks to technology that allowed them to follow live on TV or Radio commentaries. As the reality of The Hague dawned to Kenyans, the mood was a mixture of sobriety and expectations.  The gravity of the matter was now starting to sink in the hyped psyche of previous week’s events. Both divides in the matter share the sense of expectations, with those who think their "leaders" have been falsely accused expecting their innocence to be confirmed in due course and those who see this as a trial of impunity expecting accountability finally.

As the second bunch of suspects, Uhuru Kenyatta, Francis Muthaura and Hussein Ali make their maiden appearance today, the ICC proceedings will continue to captivate the minds of Kenyans as long as the trials last.

THE HAGUE AT LAST!

MPs accompanying the Six Suspects                 Photo/JOAN PERERUAN

The trial of those suspected of bearing the greatest responsibility in the aftermath 2007 post-election violence in Kenya finally starts tomorrow 07.04.2011 at the International Criminal Court (ICC) in the Hague. The long process of identifying the suspects and arraigning them in the Court has had its share of drama and tragedy. The drama played itself out with the failed search for the special local tribunal to investigate and prosecute the culprits when the Members of Parliament declared "Stop being Vague go to Hague". Then, The Hague was a far distant destination but when the ICC Prosecutor Mr Moreno Ocampo revealed the identity of the Six Suspects, the tragedy for the Six dawned with the realisation of the dawn of The Hague. Yet, the drama seems to continue with a battery of MPs accompanying the Six to the Courtroom. The way the drama is unfolding one would be forgiven to think the Six were the victims and the ICC or precisely the Prosecutor was the perpetrator. The real victims the displaced, maimed, raped, the dead and their families do not count. The cry for justice is not for the victims of the violence but the Six. Kenya may misplace its priorities by overdramatizing the fate of the Six, however I hope the guest for justice for the victims and the punishment of impunity will always guide the actions of the international community and the ICC.

Photo/JOAN PERERUAN

The Six may be innocent but at least they will have their day in the court where they can contest and demonstrate their innocence. However, the victims of the violence never had the chance to defend themselves and demonstrate their innocence.

Let us also remember that Kenya freely drove itself to the Hague and not the other way round. The ICC did not invite Kenya to The Hague. When Kenyans butchered each other and the Kenya government failed to carry out its primary responsibility of a sovereign State to investigate and prosecute the perpetrators of the violence the intervention of the ICC became inevitable. This is not the first time Kenya has failed to punish impunity. We all live in the dreadful memories of the prior elections' violence and subsequent impunity and lack of criminal accountability.

Love of a Mother                   Photo/PHOEBE OKALL

As Kenyan government exercises its sovereign right to challenge the admissibility of the cases and asking for a deferral, it is only a sincere effort to create local procedures to try the suspects that will be rewarded with deferral. I truly believe that Kenya should have taken the challenge earlier and established a local tribunal rather than going The Hague path but that is water gone under the bridge now. For the Six The Hague is a reality and for the victims of the violence it is a start for justice.

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Stella Mwangi Wins MGP Final Norway

Stella Mwangi an artist of Kenyan origin in Norway won the coveted Melodi Grand Prix title in Norway 2011. Stella singing her winner song “Haba Haba Hujaza Kibaba” will now represent Norway in the Eurovision Song contest in Düsseldorf, Germany in May this year. Haba Haba song scored definite majority votes 280,217 against the closest rival “the Blacksheeps” song “Dance Tonight” 155,059 in an eight finalist contest in the 5,000 spectator fully parked Oslo Spectrum on Saturday 12.02.2011. Two weeks earlier, Stella won a direct final ticket in one of the elimination finals held in Skien in Norway. Since then the single hit Haba Haba has been No. 1 on the iTunes list in Norway.

Stella Mwangi and her family came to Norway as political refugees at the tender age of four years. According to her, she has always liked to sing. Although her music has made inroads in the African continent, this is her first debut in the Norwegian music scene. And she did it in a big way.

Apart from the spectacular dance performance accompanying the song, the song text is great and full of motivational significance. Stella composed the song herself from the encouraging words of her grandmother “Haba haba hujaza kibaba”. In the simple text, Stella captures the eternal wisdom taught by personal development books and speakers on significance of having a dream, vision, belief, faith, action, persistence, and gratitude. It is all about the law of attraction and the secret of success. The song has a profound message to all listeners and especially young people, that “if you have a dream and work hard to achieve it, persisting even when the going gets tough and having faith and gratitude for the small steps taken, little things and achievements you encounter every day, you will finally succeed.” Stella is at the threshold of her success. She is a living testimony to the veracity of the old tested message in her song. It resonates with the Obama “Yes We Can” catchphrase.

Here is the text:

When I's little girl
My grandma told me
That I could be just anything I wanted to be (repeat)

She said...

Everything I work for
Everything I wish for
Everything I look for
It is just in front of me. (Repeat)

And she said...

Haba haba hujaza kibaba.

When I's a little girl
My grandma told me that
It is the little things in life
That’s gonna make me happy

She said...

Little by little fills up the measure
Don’t ever give up keep on moving
Little by little fills up the measure
Don’t ever give up keep on moving.

Haba haba hujaza kibaba

As a person of Kenyan origin living in Norway, Stella makes me proud. Stella’s family was there to support her, witness her victory, and was extremely proud of her. Her success has made Norway, Kenya, Africa and all immigrant peoples proud. By breaking the barriers of prejudice and bigotry, Stella has demonstrated that if you are good at what you do you are unstoppable. But the real congratulations go to the Norwegian people. Their overwhelming vote for Stella attests to the superiority of merit over prejudice.

I believe that Europe is ready for Stella and the best song will win in May.

Kenya Celebrates First Mashujaa Day

Mashujaa Day is one of the three public holidays in the newly promulgated constitution. Mashujaa day which means (Heros' Day) replaces the former Kenyatta day which is celebrated on every 20th October. The first Mashujaa day was celebrated by honoring the pre-independence days heros and today's heros from all walks of life. For the first time in the history of Kenya these gallant sons and daughters were publicly acknowledged and honored. What a change of perspective and vision. The spirit of the new constitution is really about to shape the attitudes and priorities of Kenya people.

A New Kenya, A New Dawn, A New Vision!

When Kenyans voted for a new constitution on 4 August 2010, they believed in their own minds and hearts that they voted for a New Kenya, a New Dawn and a New Vision. In contrast to the past, they maintained peace, decorum and calm during the campaign period and on the voting day. They clearly despised and shunned the few instances of hate speech and the perpetrators. As it were, the Kenyan people were sending a clear message that the past era was gone and a new dawn had set-in in the country. With the promulgation of the new constitution on 27 August 2010, it is desirable to reflect on the significance of these words.

A New Kenya

The people of Kenya had longed for a new political order for decades. Although many would suggest that the quest for a new constitutional order started 20 years ago, the truth of the matter is that, it goes further back to the days immediately after the independence. Kenyans never liked the way the political elite governed for the past 47 years. They hated the way the elite wrestled political power from the people and converted democratic institutions to vehicles of one-party and one-man dictatorship. In the New Kenya, Kenyans envision restoration of political power to the people and their democratic institutions. Political power no longer should reside in a dictatorial state but in the people of Kenya and peoples’ democratic institutions. This is precisely the strongest assertion the new constitution makes.

The Constitution starts in Article 1 by affirming that the sovereign power resides in the people of Kenya and not the State apparatus and institutions. The State organs and institutions exercise the power as delegated to them by the people in accordance with the constitution. The state organs are there to serve the people not the other way round. The era of people’s subservience to the State has ended. In the new order, there is no room for an imperial president, overbearing executive and parliament and partial judiciary. These institutions have to function within the limits of the powers conveyed to them under the constitution. They must respect the devolution of power and independence of institutions. No constitutional institution is superior to the other as all derive their powers from the people. Nonetheless, the institutions must cooperate in exercise of these powers. They also must act as checks and balances on each other in order to protect peoples’ sovereignty and promote rule of law and constitutionalism.

Independent constitutional institutions and offices such as the National Human Rights and Equality Commission, the Electoral and Boundaries Commissions, the National Land Commission, the Commission on Revenue Allocation, the Salary and Remuneration Commission, the Public Service Commission, the Teachers Service Commission, the National Police Service Commission, the Judicial Service Commission, the Parliamentary Service Commission, the National Police Service, the National Intelligence Service, the Kenya Defence Forces, the Attorney General, the Director of Public Prosecutions, the Auditor General and the Controller of Budget all have to work within the limits and confines of the constitution and law. Their purpose is to serve the people and not any particular arm of the government. In the past, most of these institutions purported to serve the whims and interests of the ruling elite. Their objects, as stated in the constitutions, are to protect the sovereignty of the people, secure observance by all State organs of democratic values and principles and promote constitutionalism. Kenyans expect nothing less.

The new Kenya ushers a new era of governance. It is the era of governance through the constitution and institutions. This is in contrast with the past when individuals heading these institutions were bigger than the institutions themselves. In the new Kenya, institutions will no longer be synonymous with individuals. The institutions must carry out their functions independent of the individual leaders.

A New Dawn

A new dawn brings with it new expectations. In Kenya, a new dawn arrived with the voting of the new constitution into law. As the people celebrate the promulgation of the new law, they do so full of expectations of a new era as describe above. They foresee an era of democracy, rule of law, constitutionalism, human rights, and economic-social development and prosperity. However, they are not naive. As the saying goes ‘once bitten, twice shy’, they know that for the new dawn to have meaning, they must remain vigilant and defend the constitution from those who would like to undermine it. As the constitution moves to the implementing stage the people must guard against elements that have always worked against the realisation of the new political and legal order. The populace must identify, shame and shun any person, group of persons or institution that may attempt to circumvent the proper and full implementation of the new constitution. That is the only way the constitution will be a New Dawn to Wanjiku.

A New Vision

In the past, new dawns like the one being experienced now too soon turned into dusk as those entrusted with implementation lost the vision that united them during the struggle. Immediately after independence in 1963, the independence political party, Kenya African National Unity (KANU), lost its vision when the leaders of the struggle and new independent Kenya were engrossed in personal, ideological and ethnic antagonism. The same happened after the historic election of 2002 when National Rainbow Coalition Alliance leaders turned on each other for the same reasons. Personal, ideological and ethnic rivalry did not serve Kenya well in the past and this time round the political leadership must learn from history and avoid such conflicts for the sake of unity and prosperity.

The new constitution encompasses a New Vision of constitutionalism and institutionalism. The full and proper implementation of the constitution is the only guarantee that the New Kenya the people voted for and the expectations of the New Dawn are realised. The political class should not short-circuit the people of Kenya again.

Long Live New Kenya, Long Live New Dawn, Long Live New Vision.

Kenyan Tourism Advert Commuting around in Berlin City

Recently while in Berlin City for holiday, I was surprised to notice a big Kenyan tourism billboard Ad on the side of one of a Berlin public transport bus. Before I could point my digital camera for a picture, the bus zoomed away. However, on the last day of my stay in the City, the bus with the billboard Ad stopped just close to where I stood. This time round my camera was handy and I took the picture above which I wish to share with you.

The reason for sharing this is first to commend those behind the Ad for a good job. Secondly, it filled me with pride to see the Ad. Such is the positive image of our country one likes to see in foreign countries. Those concerned ought to extend the project to other cities in Europe.

2010 Referendum: Don’t Get Duped Again! Vote YES

Parliament squandered it chance to influence the new constitution but heroically endorsed it. Although majority of the proposed amendments were ill conceived, a minority were desirable. Just to mention few: the amendment to increase the number of counties from 47 to a higher number agreeable (necessary to ensure adequate representation in the senate), the abortion clause (could have been made neutral or scrubbed out, after all silence does not mean endorsing or prohibiting. The courts could have been left the discretion to develop the law in the area and therefore avoid offending the Christians), the Kadhi Courts could have been left out of the constitution (after all the Muslims have not demonstrated compelling reasons for retaining the courts in the constitution. Furthermore, the historical reasons for entrenching the courts in the constitution 47 years ago may not be valid today. There was no adequate debate on this outside the historical justification).

The parliament failed in its responsibility to interrogate these issues. It allowed itself to be divided on party lines, ethnic, regional and parochial interests. If the constitution faces strong opposition during the referendum, the parliament should bear the responsibility.

That said, Kenyans should not allow themselves to be duped this time round like in 2005 referendum into rejecting this constitution. No constitution is perfect and a perfect constitution is a utopia and an ideal to strive to. Despite the shortcomings, this constitution if passed, will radically impact on Kenyans’ lives, democracy, institutions, governance, economic development, resources distribution, and human rights as well as the rule of law and gender equity.

Admittedly, though important to sections of the society, the flaws are too few. Focusing on the almost full glass is better now than on the empty glass. In 2005 the focus was on the shortcomings. Consequently, the good in the constitution which would have given Kenyans a better society were overlooked. Kenyans should reject anyone telling them to wait for a perfect constitution. It is better to seize what is on the table now, and then as the President and the Prime Minister implored, improve on the inadequacies in the future. Believe me once the new constitution becomes operational, the shortfalls will look trivial and chances for amendment may improve.

A word of caution to the politicians and church leaders taking hard positions: The 2007 post-election violence was not a result of a bad constitution but of inflexible positions. Rigidity blindfolded politicians in 2005 that they could not see the consequences of going to an election on an inadequate constitution.

Politicians may not do much damage to the constitution through opposition this time round. But Christian church leaders may have undue influence on their followers. Although I do accept that the issues at the heart of church leaders may have escaped adequate deliberation by the Parliament, Parliamentary Select Committee and Committee of Experts, the constitution is so important to the health of the entire nation that to oppose it may not be the prudent thing to do. My advice is that the love for the good of the nation should temper church leaders’ grievances and the obvious flaws.

Vote YES now! It is better to argue about amendments rather than the whole document in the future.

A Good Draft Constitution but Not Perfect! Part 3 of 3

This is the Last and Thrid part of my comments to the Constitutional Committee of Experts on the Harmonized Draft Constitution. See Part 1 and 2 below.

Representation in a Devolved System
The harmonized draft constitution proposes a three tier devolution system. I have no quarrels with that. Devolution is viewed in many countries as a way to dampen regional, racial, ethnic, or religious cleavages, particularly in multiethnic societies. These should be desirable results in Kenya. That being so the costs of devolution should not be viewed as unnecessary burden to the economy.

The establishment of a bi-camel legislature is good for ensuring democratic balance between majority rule and minority rights. The lower house safeguarding majority rule principle and the Senate protecting minority rights and regional interests. To achieve these results representation in both houses must, however, comply with some basic standards of boundary delimitation: impartiality of boundary authority, equality of voting strength, representativeness in drawing constituencies, non-discrimination by avoiding boundary manipulation, and transparency. While Article 113 of the draft provides for the standards, delimitations of regions and counties in First Schedule and Article 5 (2) seem arbitrary especially when representation in the Senate and Regional Assemblies are based on the number of regions and counties. The principle of equality may not have been complied with especially as regarding the county level. The populations of some of the counties may be too large such that equality of voting strength is not respected.

Similarly, equality principle in representation in the National Assembly should be adhered to in order to make majority rule meaningful. There are perceptions that the way current constituencies are drawn does not comply with the principle of equal representation. The populations of constituencies are not equally divided so as to provide voters with equality of voting strength. In my opinion the representation in both houses should be seen to be fair so as to make devolution meaningful. The people should feel adequately represented at all level of devolution and not circumvented.

Finally, thorough proofreading should be done to the final draft so as to avoid some obvious errors such as in Article 125 (3). The reference to Article 141 (2) (a) does not correspond with the contents of this Article.

A Good Draft Constitution but Not Perfect! Part 2 of 3

This is the second part of my comments to the Constitutional Committee of Experts on the Harmonized Draft Constitution. See Part 1 below this one.

The Executive Powers
In the harmonized draft you propose a hybrid system with an elected president who wields state constitutional powers and a prime minister from the party with majority in parliament on whom executive powers reside. In your effort to clearly define the powers of the president and prime minister so as to avoid conflict you ultimately created a parliamentary system rather than a hybrid system. In the draft, the president has no executive powers at all. He or she is for all practical purposes a ceremonial figure. He or she has little if any influence on policy and how it is implemented. The legislative powers granted to him or her cannot be exercised without the connivance of the prime minister who heads the cabinet that must approve a legislative proposal by the president. The power of the president to assent bills also seems ceremonial as the veto powers are curtailed by allowing a lower member vote threshold in parliament. A president who is elected by the people and in whom executive powers do not reside should have veto powers which are to be exercised to influence policy and protect the interest of the people where these are disregarded by the parliament and the cabinet. In fact, I would propose providing for president to be able to present a bill directly to parliament without the approval of cabinet and where the parliament and president disagree on a law the president should refer the bill to a referendum.

In my opinion, a hybrid system makes sense where the president and the prime minister share real executive powers. The current Grand Coalition Government is a real hybrid system. In order to avoid conflict, the two principals can only act through consultation and cooperation. The existence of multiple powers should not necessarily imply conflict. The best solution in a hybrid or mixed system is not to strengthen one to the detriment of the other. Whether this is the system of government Kenyans want I cannot say. In the previous constitutional drafts, that guided you in your work on the new draft, Kenyans had not contemplated a Grand Coalition Government. Their experience with the current Grand Coalition Government may not be positive so as to persuade them to accept a hybrid system the way it is formulated in the harmonized draft.

The objective of a government is to ensure democratic rule and economic development for its people. The preference for a hybrid system stems from the fear that new democracies are likely to revert to authoritarianism. The need to redistribute executive power between the president and the prime minister therefore becomes necessary. The fear is, however, not supported by evidence. To the contrary, evidence points to so few new democracies that have actually reverted to authoritarianism.

On economic reform performance, the hybrid government seems to do well only where the president and the prime minister share real power. This is because both strong presidents and strong prime ministers exert a positive effect on the implementation of economic reforms. The ideal strategy for hybrid constitution is not the strengthening of one to the detriment of the other. Rather, the implementation of reforms will be maximized at a point in which both the president and the government have significant powers to intervene in the policy process.

Whether the country adopts a parliamentary or presidential system is inconsequential to the level of democratic rule and democratic development that obtains in a country. Both systems were adequately represented among authoritarian governments of Africa and elsewhere. Conversely, the two systems are aptly represented in successful democracies and developed economies. Each system has its own advantages and disadvantages and none fairs better than the other. The strength of one over the other really depends on one’s preference.

Efficiency, rule of law, accountability and so on are inherent in both systems. The choice for one over the other is dictated by other factors. Peculiarity of a country; culture, past experience, level of development and geographical region seem to influence the choice. Kenyans have experienced the presidential system for the last 46 years. Culturally, the presidential system is more familiar to them than the parliamentary system. Although Kenyans have had bad experiences of dictatorship under the presidential system in the past, this did not dampen their preference for an elected president going by their documented views before Bomas. As has been eloquently put by others, Kenyans want to elect their own CEO whom they can hold accountable rather than experiment with unpredictable parliamentarians and political parties. Kenyans do not trust political parties and MPs who change positions on political expediency. At the same time, Kenyans reject an imperial president who “Lords” over them.

In this regard, you were right to propose a hybrid system of government but wrong to transfer all the executive powers to a prime minister and parliament. In the past, the main problem was lack of cooperation avenues among institutions in the presidential system. The system of government Kenyans want falls in between the presidential and parliamentary systems. The executive powers should be shared between the president and the parliament in order to encourage cooperation between them. A strong president and a strong prime minister (close to the French system) seem to be the preferred solution as the pure presidential system is in the past and the future can only be left to posterity. The making of constitution is different today from the making of the constitution in 2003. Let us find solutions to the current problems of governance. So the challenge is how to strike the right equilibrium.

Check out the Final Part 3 on the representation in a devolved system tomorrow.

A Good Draft Constitution but Not Perfect! Part 1of 3

I would like to commend the Committee of Experts on Constitutional Review for proposing a good draft Constitution for discussion. The draft is a good starting point but not perfect as no constitution is perfect. A constitution is a living document which tries to rectify the past wrongs while solving present problems and proposing a road map for the future. In this sense, a good constitution is both backward looking and forward looking. But importantly, a good constitution attempts to solve present problems without being a captive of the past and without imposing solutions to future generations. While we can try to mend the past we cannot predict the future. Posterity will have to solve their problems. But if we construct a good foundation for governance today, the future generation will be inspired by our foresight. So in my view a good constitution is one that offers solutions to our present problems inspired by past experiences and future expectations. Such a constitution cannot be perfect for all times.

I think that the Harmonized Draft Constitution aptly endeavors to find solutions to most of the pressing problems of our nation today. That said, however, there are areas that may need more attention. The draft has positively dealt with matters concerning human rights by targeting political, civil and socio-economic as well as cultural rights, environmental rights and utilization and development of natural resources. In this sense, it has reinforced the fact that human rights are indivisible. It has also appropriately addressed gender balance and disadvantaged persons’ rights in most aspects of life. The rights of minority groups are also in focus. Provisions on citizenship and dual citizenship are also welcome. Land rights, which have been a major cause of conflict, are adequately spelt out and are reinforced in the recently adopted National Land Policy. The provisions on political parties are commendable. The separation of offices of Attorney General and Director of Public Prosecutions and the creation of a new office of Public Defender is innovative. Of course, I am aware that individuals and groups directly affected by some of the rights and provisions will make their views known and where necessary suggest improvements. As such, I will not dwell on such shortcomings here.

My main concern in this commentary is on matters which are still regarded contentious and require input; executive powers and representation in a devolved system.

Check Part 2 tomorrow.

Stage is set for ICC Intervention in Situation in Kenya

After meeting the President and the Prime Minister in Kenya on 5 November 2009, the Office of the Prosecutor (OTP) of the International Criminal Court decided to request the Pre-trial Chamber’s of the ICC for authorization to investigate the Kenyan Situation. The decision was prompted when the Kenya government declined to refer the matter to the ICC according to Article 14 of the Rome Statute.

Pursuant to his decision, on 5 November 2009 the ICC Prosecutor Mr. Luis Moreno Ocampo notified the Court of his intention to submit a request for authorization of an investigation into that situation under article 15, paragraph 3 of the Rome Statute of the International Criminal Court by 1 December 2009. The Court on its part expeditiously decided on 6 November 2009 to assign the situation in the Republic of Kenya to Pre-Trial Chamber II with immediate effect. According to the Court, the request is based on the Prosecutor's determination that "there is a reasonable basis to proceed with an investigation into the Situation in the Republic of Kenya in relation to the post-election violence of 2007-2008".

Kenya ratified the Rome Statute on 15 March 2005, which entered into force for Kenya on 1 June 2005. In December 2008 Kenya domesticated the Statute by enacting the International Crimes Act of 2008. The Act, however, entered into force on 1 January 2009 and therefore it does not apply to the post election violence crimes according to the retrospective principle in the Constitution. The international jurisdiction of the ICC, however, applies to Kenya under the complementarity principle. According to this principle the ICC may intervene only if there are no national proceedings against those responsible for the crimes. This is the assurance Mr. Ocampo sought from the Kenyan authorities during his visit. But the response from the government was equivocal. While they promised to cooperate with the ICC they at the same time refused to refer the matter to the ICC but expressed their commitment to pursue national mechanism to deal with impunity.

The events in Kenya are of interest to international criminal justice and jurisprudence. Firstly, this is the first time the ICC Prosecutor is invoking the powers conferred to him under Article 15 to open proprio motu investigations on a situation occurring in a State Party to the ICC. The other situations under ICC investigation and prosecution, respective State Parties namely Uganda, the Democratic Republic of Congo (DRC), the Central African Republic (CAR) referred the matter to the ICC and the United Nations Security Council referred the situation in Darfur, Sudan (a non-State Party). Moreover, the situation in Kenya presents the ICC with its first case in which a request for authorization has been made by Prosecutor. The determination of the case will be precedent setting irrespective of the outcome.

Secondly, the application of the complementarity principle in the Situation in Kenya will be interesting to explore. According to the principle, States remain the primary enforcers of international criminal law, and the ICC is only a court of last resort established to complement national systems where they fail to conduct adequate investigations and prosecutions. The ICC cannot intervene if the State is willing and able to fulfill its primary responsibility. The question is whether Kenya has failed to conduct adequate investigations and prosecutions against those criminally responsible? The answer may seem quite obvious but the reasons may not be apparent. In my opinion, a thorough examination and analysis of reasons and thinking of the Kenya government and the Prosecutor could elucidate the issue further.

The Government of Kenya may be playing hide and seek game with the ICC but its options have run out. Despite Prosecutor’s indulgence on complimentarity basis the government has failed to establish a special court to deal with post-election impunity as required by the Waki Commission Report (Report of the Commission of Inquiry into Post Election Violence (CIPEV)). The government declines to admit it has failed. Its double edged statement after the meeting with the ICC Prosecutor in Nairobi confirms government’s motives. The government could be thinking that by allowing the Prosecutor to take the initiative, they still have room for maneuver if within the 30 days of notification of authorization by the Prosecutor of commencement of investigations it claims to have put in place local mechanisms by setting up a local tribunal. Such a move could slow down the ICC process but will not stall it as the Prosecutor could notwithstanding seek Court’s authorization to proceed. As argued below he has adequate reasons to do so.

From a political perspective the government’s refusal to refer the matter to the ICC may have been triggered by the fear of being declared a failed State. The motive of the government is not to be seen to have failed in its primary responsibility of punishing impunity. Otherwise, it will rank with other failed States such as DRC, CAR and Sudan. But covertly the government seems to want the intervention by the ICC.

The ICC Prosecutor seems to operate from a number of convictions. The first is that the government has failed in its primary responsibility of investigating and prosecuting those bearing greatest criminal responsibility and the ICC’s intervention is inevitable. The Prosecutor’s mission to Nairobi was to inform about the way forward to the government not to negotiate with it on national mechanisms. It was the Prosecutor’s expectation that the government would refer the matter to the ICC, and failure to do so that he would move to ICC. His prompt action to request authorization from the ICC was an anticipated reaction.

The second conviction was repeated in his statement in Nairobi. The Prosecutor said that he is of the opinion that crimes against humanity have been committed in Kenya. “In accordance with his preliminary examination of the situation, there is reasonable basis to believe that the attacks against Kenyan civilians during the post election violence, constitutes crimes against humanity under the jurisdiction of the ICC. In accordance to Article 7 of the Rome Statute, a crime against humanity means a widespread of systematic attack directed against the civilian population.”

The third conviction is based on the mandate of the ICC “to put an end to impunity and thereby contribute to prevention of future crimes” as provided in the Preamble of the Rome Statute. The Prosecutor is convinced of the urgency of investigations and prosecutions in the situation in Kenya because, according to him, it will contribute to justice and prevention of impunity in the coming general election 2012. He does not believe that a national process would act expeditiously and decisively before the next general election in 2012. As he has always insisted “the ICC is ready to make Kenya a model example in prevention of impunity”. This is an opportunity he would not like to slip away.

The fourth conviction is that ICC proceedings should go hand in hand with complementary investigations and prosecutions at the national level as well as healing and reconciliation processes. The Prosecutor does not exclude national proceedings aimed at dealing with numerous cases of impunity which the ICC cannot address. This is the basis for the Prosecutor’s three-prong approach: The ICC to try those bearing the greatest responsibility, a local tribunal to prosecute other offenders and the non-prosecutorial Truth, Justice and Reconciliation Commission for healing and reconciliation. Impunity is deeply ingrained in the Kenyan society and a single process such as the ICC cannot undo it. A combination of mechanisms seems appropriate.

The fifth conviction is that the Kenya government is committed to cooperate with the ICC. The litmus test for the government’s seriousness, however, will come when the warrants of arrest are issued. If the government does not comply with the arrest orders then its assurances will amount to mere political gimmicks and theatricals. The process is, however, inexorable.

Configuration of the factors above has set the stage for ICC intervention in the Situation in Kenya. Political intrigues and interests will undoubtedly attempt to derail the process but this tactics might not succeed this time. Even if politicians dither, the ICC Prosecutor is committed to ensure impunity is punished and future crimes are prevented. Besides, the ICC process has the support of the public and the international community. The engagement of the ICC in the Situation in Kenya is also an assurance to the victims that those bearing the greatest responsibility will not win again.

This article was first publishe in Pambazuka News on 26.11.2009

I Like the New Raila I See!

With this contribution I want to go against the mainstream belief that Raila Odinga has become comfortable in his current position of the Prime Minister of Kenya and abandoned his revolutionary charisma.

Believe me I like the new Raila I see. I would like to think that Raila has matured as a politician. He has become a statesman, a Prime Minister of all Kenyan people and abandoned political activism. He has changed tactic from the confrontational revolutionary fire spitting politician to politically engaging and even disarming statesman. His silent engaging politics are more effective in the current political landscape than his cries of lack of toilets, carpets and consultation. Consultation is a mutual exercise. One has to be ready to go into it with good faith for it to produce good results.

Instead of imputing bad faith in Raila, I think the civil society and media should see the light and change tactic too. There is time for everything. There is time for revolution and confrontation and there is time for evolution and engagement. This is time for evolutionary and engagement politics and Raila has read the writings on the wall correctly. The civil society, media and a large section of the society in Kenya is still living in the past.

In 1992 Kenya changed from one-party state to a multiparty state. But the opposition leaders, civil society and media did not change. They approached politics in the same old way of confrontation. In 1997, the opposition embraced engagement and the interparty agreement was reached. The outcome was a seemingly independent election commission that organized the 2002 general elections. Perhaps without this agreement the successful 2002 general elections that overturned tables for Kanu would not have been possible. But immediately in 2003 the confrontational politics resurfaced with wars on the Narc Memorandum of Understanding (MOU) and the constitutional process. The standoff culminated to the 2007 post-election violence as the main political parties and their leaders refused to yield way to each other. The ensuing Grand Coalition Government in 2008 was characterized by confrontation in the first year in office. But now the so called Principals seem to have realized the futility of their obstinacy and inflexibility. Because of the lack of flexibility in civil society, some politicians, the media and a large section of the society, Raila is readily labeled a traitor and having betrayed the revolutionary path.

Learning from history, we see that the Kenyatta and Old Odinga confrontation in the 60s plunged the country into a paradigm of confrontation politics that has consumed the country for the last 45 years. Isn’t it time to shift paradigm and build on the things people agree on and not devour each other on real or perceived differences? Is it not easier to build on the already achieved reforms rather than whining over an empty glass? Kibaki and Raila in their new found cooperation can propel Kenya to greater heights in terms of political reforms and economic growth if they were given full support rather than being criticizes from all corners. This is time for talking with each other rather than to each other. It is not time to draw lines between reformers and anti-reformers. Divide and rule tactics will only destroy the good faith that is required to see the reforms through. The saying that, it is easier to swim downstream rather than upstream, is apt here. Raila and Kibaki have opted to swim downstream by choosing to be bigger than their revolutionary and conservative selves respectively and by engaging each other in the reform paradigm.

It is easy to be tempted into rubbishing the already accomplished work on reforms by invoking the seemingly impossible work ahead, but little progress will be made without painstakingly laying down the legislative and institutional building blocks for the reforms to take off. The various legislation that have established institutions such as the election commission, the constitution committee, the election boundary reform commission, the truth, justice and reconciliation commission, and the national cohesion and integration commission are not baby steps given where Kenya was January last year. Now is upon Kenyans to give these institutions the moral support they need in order to carry out their work effectively. On land reform, the adoption of the National Land Reform Policy by the Cabinet is also another milestone. The parliament should move very fast and adopt it too. On the infrastructure such as roads anybody living in Kenya today will attest to the work done and still going on. Other areas are those involving socio-economic development and on these one too the CDF, Kazi kwa Vijana, women and youth development funds are also not small things.

There are still areas where the government needs to do more especially as regards impunity and corruption. Reforms in the judiciary and police need more momentum. But confrontation will not achieve much. The reality is that impunity, corruption and insecurity are endemic and must be dealt with decisively for stability and security to return in Kenya. But what one hears from the civil society, media, a section of politicians and foreign diplomatic missions is prophesies of doom and hopelessness. What is required is courage in engagement and not in confrontation. Raila and Kibaki are showing leadership here while the rest of the society is droning. The Parliament need to be tough but at the same time it should see beyond its current war on supremacy with the Executive. It should not be pursued at the expense of necessary reforms.

Comprehensive and sustainable reforms are possible before 2012 but the entire country should move in the same direction. It should be on the same wave length. I think Raila believes in this, Kibaki believes in it too. Kenyans should also believe.

Congratulation President Barack Obama for the Audicity to Hope

This blog would like to congratulate President Barack Obama for his inauguration as the 44th President of the United States of America. At the same time it reflects on the lessons his achievement teaches us.

Today history is in the making for the millions of black people all over the world. Your presidency in the most powerful country in the world uplifts many people of the trodden race. You have made what many thought was impossible achievable. This has a number of lessons for the black people.

The first lesson goes to the African leaders. True leadership is about uniting the people not dividing them. The evils bedevilling Africa from poverty, disease, ignorance, illiteracy, war, hatred, bigotry, corruption, you name it is a result of false leadership. Obama has demonstrated that true leadership does not thrive on the misery of its people but on the hope and inspiration it brings to the people. On the other hand, African leaders have used all tactics in their possession to divide the people on ethnic, religion, and regional lines in order to get and remain in power. If Obama had listened to bigotry he would not have won the presidency. Through his actions and words he proved that the presidency was not about African-American turn but about the best candidate. How many times have we heard African leaders shout themselves hoarse “it our turn now”. By projecting himself as the best candidate, Obama won the hearts and minds of the people. True leadership is about winning the hearts and minds of the people and not preaching divisive hatred and fear.

President Obama has demonstrated that it is only through the cooperation of a people that their greatness can be attained. For him a great America is not black, white, Asian or latino. A great America is black, white, Asian and latino. It is a poor and rich, young and old America. You cannot exclude any one race or class and then claim greatness. On the other hand, African leaders are masters of exclusiveness. Their greatness comes from their race or ethnic group in exclusion of all the others.

President Obama has also proved that a great leader does not ally himself with bad and tainted leaders or persons. When Reverend Jeremiah Wright preached bigotry he denounced and rejected his prejudices. Obama said, "I categorically denounce any statement that disparages our great country or serves to divide us from our allies . . . I reject outright the statements by Reverend Wright." A leader could have a big constituency of votes but that is not what matters to Obama. Integrity comes first. Our African leaders embrace even murderers.

The second challenge is to the African, black and all trodden people – complain about the wrongs done to you but do not embrace a victim attitude. Do not let anger and bitterness overtake you. Abhor the injustice suffered but do what you must do to uplift yourself. In Obama’s words, “never succumb to despair or cynicism; you must always believe that you can write your own destiny.” If Obama had emphasised his disadvantages, he would not have had the capacity to dream big and go for presidency. He would have consoled himself by saying “no African-American can ever win the presidency”. But he dreamt and his dream came true.

Why Waki Report is Different!

The Waki Report and its recommendations belong to the people of Kenya and the international community. The politicians can only decide to trash it at their own peril.

The implementation of Waki Commission recommendations on impunity do not depend on the national mechanism solely. Previous commission reports such as Akiwumi, Kiliku, Goldenberg and Ndungu, were not implemented because they solely relied on the national process. The Waki report is different because the national mechanisms are only recommended if they work. If the coalition government fails to act or acts in a manner that is deemed inadequate, international procedures will be invoked.

The international dimension is already causing discomfort in the coalition government and among the political elite. It is dawning to them that it is difficult to ignore the report unlike the previous ones. Similarly, rejection or half measures meant to circumvent the recommendations will not work this time round.

Let us look closely at the interplay of the two mechanisms and why this was the best solution for the situation in Kenya.

Under international law the primary obligation to enforce the law lies on the national authorities and institutions. States and governments exist precisely for this reason. The Waki Commission restated this obligation when it called for the establishment of a special tribunal. The tribunal is to investigate and prosecute those found to have played significant role in organising and planning the violence.

The special tribunal must meet international standards for it to have legitimacy. The most important standard it must comply with is to seriously deal with impunity and not reward it. Governments notoriously use amnesty as a political and legal tool to circumvent justice. This is what Waki was realistically avoiding.

By their utterances and demeanour in the public and the media, the political elites are already contemplating amnesty as a soft landing for their colleagues. International law, however, does not look favourably on national amnesty especially if its purpose is to defeat justice and reward impunity. If the coalition government uses amnesty and other measures to reward impunity, the international mechanism established under the International Criminal Court will be resorted to.

The ICC is complementary to national criminal jurisdiction and as such an institution of last resort. The ICC jurisdiction is invoked only when the national jurisdiction cannot be exercised. That is when there has not been any national investigation or prosecution of the case or a state is genuinely unable to carry out the investigation or prosecution of alleged criminal under its jurisdiction, or is unwilling to do so, as stipulated in Article 17 of the Rome Statute.

The Waki Commission was contemplating all these scenarios. It was contemplating a situation where the government would ignore or reject the report and do nothing. That is, it fails to establish the special tribunal as recommended and does not even attempt to apply other domestic mechanisms such as a truth, justice and reconciliation commission. It also anticipates a situation where the government may establish the special tribunal but undermine it so that it does not accomplish its purpose. It may for example, limit the powers of the tribunal or deny it enough financing so that it fails to carry out adequate investigations and prosecutions.

Lastly, the government may not be in a position to carry out the investigations or prosecutions because it has no financial and personnel capacity to do so. The judiciary is weak or non-existent. It may also fail because doing so would cause serious political and social raptures in society.

Applying national mechanisms have the advantage of the affected community dealing with its impunity and therefore finding a sense of healing and restoration. But it could also lead to serious divisions in the society that may engender more impunity. In the latter case, the national process may not be the appropriate solution.

The international mechanisms, on the other hand, evoke resentment and sense of interference. It may be seen as interference with national sovereignty. But the latter is mainly used to defeat justice by the perpetrators. The resort to international jurisdiction may be the best solution where fear of political interference and social divisions in the society is immenent. Trying perpetrators in distant foreign land can lessen tension in the society as the trial can lose its mobilising effect.

The Waki report cannot end up gathering dust on the shelves of bureaucratic offices like its predecessors. The government will have to implement it effectively or risk the ICC taking over the matter. In either case, the people of Kenya should be the winners and impunity the loser.

Who Controls ODM?

In Kenya every political party “ina wenyewe” has its owners. Who are the owners of ODM? After ODM rejected the Waki Report (The Daily Nation, 31 October 2008), the question becomes pertinent. Earlier in the year I wrote in this blog about Demystifying ODM (see below) because I believed that ODM was taking Kenyans for a ride with their pro-masses and pro-people rhetoric – “ODM has camouflaged its anti-masses agenda through leftist and popular rhetoric”, I wrote. But I found an appropriate article debunking ODM myth by Mukoma wa Ngugi “Understanding the Kenyan Opposition”. If you have not read that article and you want to understand who owns ODM you better do so now.

Coming back to who controls ODM, the rejection of Waki report answers the question. Ngugi identified three forces in work in ODM.

“Within the opposition leadership (or the Pentagon as they refer to themselves), there are at least three competing elements -- the activist-intellectual left, the Moi-ist retrogressives, and the populists, he wrote.”

It is now clear as daylight that the populist faction led by the Prime Minister Raila Odinga does not control ODM. Others in this group may be Musalia Mudavadi and James Orengo. Raila does not also seem to have the control of the Luo Members of Parliament as one would think. They defied him for supporting the implementation of the Waki report and even purported to gag him from speaking out on national issues. The Standard 31 October 2008 wrote:

“Nyanza MPs have asked Prime Minister Raila Odinga to consult his ODM colleagues before commenting on sensitive national issues. The MPs also told Cabinet ministers Anyang’ Nyong’o and James Orengo to be careful while contributing to political issues. Sources at a meeting held at Jaramogi Oginga Odinga Centre said the 14 MPs also cautioned the PM over his position on the Mau Forest. "We asked him to be careful with political issues, which we felt may not augur well for his political future," said an MP, who attended the meeting. The MPs told the PM to his face they would not tolerate any more outbursts from him. "We sought to know from him, what interest he had on the Waki Report or Mau Forest to go the extent of committing political suicide while there are ministers supposed to handle the issues," the source said.”

Even the maverick James Orengo was made to eat his own words.

The stormy meeting saw Mr Orengo withdraw and apologise over remarks he had made that those named in the list should carry their own crosses.

The activist-intellectual left led by Anyang’ Nyong'o does not too control ODM. Nyong'o has not made his position on the Waki report known so far. His colleague, with whom they led this faction during the pre- and post-election, Salim Lone has since quit his job as the adviser of the Prime Minister. Perhaps he realised that the owners of ODM were about to claim its control and made an early exit.

That leaves us with the Moi-ist retrogressives. For all practical purposes this is the faction controlling ODM. It is led by William Ruto and William Ole Ntimama. This is the group where those allegedly involved in past and the recent impunity congregate. Ruto, Ntimama, Henry Kosgey and Fred Ngumo were the first out to trash the Waki report in the ODM. They have now enlisted most of ODM politicians especially MPs. Most of the MPs in ODM belonged to the past Moi era and part of his regimes impunity. It is not surprising now that they are taking control of ODM to shield the impunity. They have even the impunity to declare that they will protect those on the secret list.

“ODM on Thursday rejected the Waki report on post-election violence as its leaders said they would resist attempts to charge any of those named in a secret list of suspected perpetrators.” The Daily Nation 31 October 2008.

By the time of writing PNU has yet to issue its official stand on the Waki report. When they do then we will know who owns PNU too. But from their utterances it is not difficult to tell. We, however, give them the benefit of doubt for now until they state their official position.

The Waki report belongs to the people of Kenya and international community not the politicians who are part of the impunity. The politicians have been taking the people for granted. They unleash impunity and declare themselves innocent. It is time to reject all politicians who reject the Waki report. The people should support implementation of the report and refuse to be divided on ethnic lines by the politicians. The international community should now know all Kenyan politicians are the same and support the people of Kenya in bringing those in the secret list to the International Criminal Court.

This is the time for the civil society, religious faiths and all people of Kenya to stand together against the monster of impunity. Don’t fall prey to the divisive tactics of the politicians this time round. It is time to demand Justice.

Kibaki and Raila Should take a Retreat Urgently

Kriegler and Waki reports are a damning audit of Kenyan leadership, institutions and society. According to the reports, leadership and institutions in every sector of the society were culpable for the political and moral decadence that led to the pre-election and post-election violence. The reports unanimous conclusion is that the culture of lawlessness, disregard of rule of law and impunity in society, is to blame. The reckless culture was exhibited by the top most State executives down the hierarchy to the ordinary persons.

The report by Kriegler went further and stated that even a new constitution may not solve the problem which basically is cultural in nature. It demanded a head on, no nonsense approach to deal with the lawlessness and impunity. Waki report reiterated the same and offered a prescription for dealing with the problem through establishment of a special tribunal to investigate and prosecute those bearing greatest responsibility in the matter. In addition, both reports recommended a complete legal and institutional overhaul and reform to ensure transparency and accountability.

The task ahead is enormous and requires creativity, honesty and forthrightness. The national behavior of pointing fingers, blame and burying the head in the sand will not do this time. There is no single institution that with moral authority left to suggest others are to blame. The entire country should stop and examine itself as cosmetic solutions are not appropriate. The country needs long lasting and sustainable legislative and institutional solutions.

When the leadership and institutional credibility in the society is questionable, hope for restoration and renewal resides in the highest authority in the country. The President and the Prime Minister are the highest authorities in the country as leaders of the government of coalition. During the post-election crisis the country trusted Kibaki and Raila to rise to the occasion and end the violence. They did. Now again the society expects them to show leadership and restore the dignity and respectability of the nation.

The grave conclusions by the two reports should have made the two leaders to go to a close door retreat urgently in order to discuss the reports and come out with a blueprint on the way ahead. The compromised Cabinet and Parliament might not have the faith of the people to do this. Their role currently, until they are also reformed, should be to give administrative and legal effect to the decisions of the principals. That is an indication of the level and extent of decay in the national institutions and society.

The modus operandi here my sound dictatorial, but during institutional crisis, as the one the country is facing now, a singular and purposive direction is required. Taking a leaf from the prevailing international financial crisis, the big capitalist countries’ leadership moved very fast, without any delay, to arrest the situation. The way they did it cannot be said to be democratic. Decisions were made by the top most government executive authorities and were presented to their institutions for administrative and legal authorization. Less is expected in Kenya now.

Demystifying ODM

I have always wanted to write a piece debunking ODM, one of the main protagonists in the Kenyan political crisis. There is a perception that ODM represents the aspiration of the oppressed masses while its antagonist PNU represents the oppressive State elite and apparatus. Nothing is far from the truth. My frustration is that ODM has camouflaged its anti-masses agenda through leftist and popular rhetoric. Consequently, an exposure of the different elements and interests in ODM is necessary if one is to understand the true nature of the crisis facing the country. A solution which is not informed by a clear understanding of the protagonists will only lead to bungled results.

Luckily, I do not have to write that piece myself because Mukoma wa Ngugi in her article “Understanding the Kenyan Opposition” has just done that. Ngugi’s analysis is very instructive and necessary reading for all who seem to give their advice on the way forward in Kenya. It is especially apt for the international community who seem not to understand what is playing out in Kenya. ODM like its counterpart the PNU is a gathering of pretenders, leftist activists, war-lords, and populists.

I strongly feel that any solution that does not hinge on advancing Kenya’s democratic and rule of law tradition as well as diversity and cohesiveness will play into the hands of these pretenders.

Read Mukoma wa Ngugi’s article here:

Kenyans were duped in the 2005 Constitutional Referendum!

(This is a longer version of an article published in "Business Daily Africa", Nairobi on 8 February 2008, under the title "Democracy comes in steps not a leap".)

Could a ‘Yes Win’ in the 2005 Referendum have saved Kenya from violence, killings and mayhem? I know that this may be an unorthodox question to ask currently but in times of crisis one needs to take the less travelled road in search for answers. Both the proponents and opponents of the 2005 draft constitution (Wako draft) agreed that it was not 100 per cent perfect. They conceded that there were some contentious issues that required to be worked out. The estimates were that the draft was 80 per cent good or better than the current constitution. But instead of focusing on what united both sides, the divisive 20 per cent became the focal point. The result was the rejection of the draft and a stalemate.

Since then, political life in Kenya has been characterised by this stalemate and the current standoff is its culmination. The confrontation has reached its apex and a climb down by all parties is necessary.

I think that there are lessons to aid them from the 2005 referendum.

The first lesson is that there are no perfect constitutions and a perfect constitution may not always work in practice. Constitutions are shaped by political and social-economic factors of the time. A perfect constitution remains an ideal and utopia to be achieved. The 2002 draft constitution (Bomas draft) is such an ideal. The referendum (Wako) draft was a major step to the ideal. It resonates with the saying that ‘if you want to land on the moon aim at the stars’.

The second lesson is that democracy is incremental. If in 1992 Kenyans had rejected the amendment to the constitution to reintroduce multiparty politics the democratic opening in the society then could not have been achieved. Similarly, if the 1997 inter-parties compromise had not been embraced by both sides the success of 2002 election could not have been possible. These were not perfect solutions but they advanced democracy, democratic institutions and society in general. In fact, the past five years was a period that the country enjoyed most freedoms in the history of the nation’s independence.

The rejection of the 2005 draft constitution denied the society and democracy an opportunity to advance. It rejected a Bill of Rights which was far superior to the rights and freedoms in protected in the current constitution.

More significantly, the draft constitution contained advanced provisions on matters core to the current political crisis and which could have steered the country out of the impasse. These provisions were similar if not verbatim to the Boma’s draft. I draw attention to a few key provisions below.

The Wako draft contains an important provision on a fair election Article 101(e). According to the provision a fair election means:-
1) free from violence, intimidation, improper influence and corruption,
2) conducted by an independent body,
3) administered in an impartial, neutral, transparent, accurate, efficient and accountable manner.
The provision would have been crucial in determining whether the 2007 election was fair and free.

The independent body referred to above is the electoral commission. Article 109 of the Wako draft establishes the electoral and boundaries commission and stipulates its functions, duties and powers among them the efficient conduct of elections and referenda. Under Article 273, the composition of constitutional commissions, which the electoral and boundaries commission is, members are to be appointed by the president with approval of parliament. This provision reduced the powers of the president as is contained in the current law where the appointment of the members is the sole prerogative of the president. Under the Wako draft constitutional commission are independent and not subject to direction and control by any person or authority and shall be impartial and perform their functions without fear, favour or prejudice.

The judiciary has come under a ferocious criticism from the opposition as a Kibaki instrument, stacked with his own political appointees. The current constitution gives the president the exclusive powers to appoint the chief justice. As regards the judges the president appoints them under recommendation of the judicial service commission. As such, the president has the final say in the appointment. But whether the judges are under his direction is another question as they enjoy tenure of office which limits the powers of the president to sack them. Under the Wako draft, the president appoints the judges under the advice of the judicial service commission and the approval of the parliament. In this arrangement, the power to appoint the judges is shared between the president and the parliament. Judges appointed under this procedure are deemed impartial and independent because they are not direct appointees of the executive. It is probable that if the Wako draft had been approved, the lack of confidence in the judiciary could not have arisen and the election dispute could have been referred to the court for arbitration. The Wako draft is similar to the Boma’s Draft on this issue.

The swift swearing in of the president after being declared the winner of the 2007 election by the electoral commission was criticised although it was not illegal under the current laws. The Wako draft, however, had a provision that could have cured the anomaly by prescribing an orderly transition after the election. Under Article 151 of the Wako draft on assumption of office of president, the president assumes office a) on the first Tuesday following the twenty one days after the date of the announcement of the results of the presidential election by the Electoral and Boundaries Commission; or b) within seven days of the determination by the Supreme Court of the election petition filed under Article 150. Article 150 provides the procedure to follow in filing a petition objecting to the validity of election of the president-elect. The petition shall be filed within seven days after the date of the announcement of the results of the presidential election by the Electoral and Boundaries Commission. The Supreme Court shall, within seven days of the filing, determine the petition.

The provisions on transition after the election stipulated in the Wako draft could have avoided the clumsy manner in which the swearing in of the president-elect was done. The draft clearly stipulates the time frame of events leading to assumption of office by the president-elect which allows for orderly transition and for disposing off any legal challenge to the validity of his or her election. The Wako draft provision was far superior to the Boma’s draft that did not give timeframe to events leading to assumption of office by the president-elect. The Boma’s draft states that the person elect assumes the office of the president ‘… on the date when the term of office of the incumbent President ends’. The provision is vague and does not take into consideration any legal challenge that may be mounted.

Finally, Wako draft and Boma’s draft had similar provisions on the procedure at presidential election in Article 149 and Article 157 respectively. These provisions lay down the procedure in case a re-run of presidential election was necessary. Article 149 (4) states that ‘the candidate for President who receives more than fifty per cent of all the votes cast in the election and who, in addition, receives a minimum of twenty-five per cent of the votes cast in more than half of the districts shall be declared elected as the President.’ Article 149 (4) says further that, If a candidate is not elected, a fresh election shall be held within twenty-one days of the previous election and in that fresh election, the only candidates shall be – (a) the candidate who received the greatest number of votes; and (b) the candidate who received the second greatest number of votes, and the candidate who receives the greater number of votes shall be declared elected as President.

It is abundantly clear that this provision was a saving clause in case no candidate garnered the required fifty per cent votes. In the current stalemate both Kibaki and Odinga did not meet this required and a re-run would have been the option rather than the current legal vacuum.

In short, there were many positive democratic victories that were lost when the baby was thrown out with the bath water in the 2005 referendum. Political expediency rather than national interests dictated the choices fed to the populace by the political elite and civil society. Simply put Kenyans were duped in the 2007 referendum that the Wako draft constitution was no good and should be rejected. That decision has come to haunt the nation with dreadful consequences. In hindsight, Kenyans should approach the current dialogue with an open mind and should not reject major victories because the whole battle is not won.

Preserve the energy for future victories not war and mayhem.

Related Views:

NJOKI NDUNGU'S WITNESS SUBMISSION TO US CONGRESS

"Further, politicking and posturing on narrow agendas, such as the contentious MOU[4], rather than focusing on national interest, led to the rejection by oblivious Kenyans of the new draft Constitution in 2005, who threw away its proposed new structures for power sharing between a President and Prime Minister, the reduction of presidential powers, increased parliamentary vetting of public appointments and institutions to deal with the land question, devolution of resources, and addressing the inequalities of the marginalized.

If that Constitution was in place, the tragedy of the last few weeks would have been avoided."

Read full Submission here