Featured Contributor: OPINION ON THE RESOLUTION OF THE CURRENT POLITICAL IMPASSE

Mon, 21 Jan 2008 03:48:16 -0800 (PST)

By Kennedy M. Ontiti

I wish to add my voice to that of Kenyans wishing to offer much needed advice and a sense of direction on how the current stalemate can be resolved. Before I embark on making any suggestions, I wish to express my disagreement with those insisting that this is a problem for Raila and Kibaki and that by them refusing to sit and resolve it, they are holding the country at ransom. These people insist that by voting peacefully, the people played their role and that now, the bulk rests with Raila and Kibaki. Those advancing this line of argument, with all due respect, do not clearly understand the workings of a democracy. In a democratic system, you cannot isolate the elected candidate from the electorate.

Take for example the current stalemate. Assuming that Raila won the election, it would be unreasonable to argue that for the sake of peace and calm he can or should let Kibaki have that coveted seat. If this were the case, then it would be possible in any democratic society for a president to resign in favour of someone else.

This, however, is not possible because in such a society, the people are the sovereign and the decision as to who leads them is theirs and theirs only. This is the reason why even if Kibaki were to resign today, Raila cannot automatically take over the Office of the President but the people would have to go to the ballot to decide. Even if Kibaki while resigning said that he wished Raila to be president, there would have to be a poll since the decision rests in the people and not him. The people demonstrating are not, therefore, protesting Kibaki's unfair win or Raila's unfair defeat. They are protesting the result of an election that has failed to reflect their wishes at the ballot. Moreover, they are aggrieved that the only process through which they could exercise their sovereignty appears to have been manipulated to subvert the outcome of their decision. They would have demonstrated all the same even if the protagonists were not Kibaki and Raila but totally different people had the same irregularities presented themselves.

The blame for the loss of life and property should, therefore, fall squarely on the doorstep of those who manipulated the electoral process and injected irregularities into it to the extent that it failed to be perceived by the reasonable man to be free and fair. If either Kibaki or Raila played a role in this, then he would carry the blame as well. To my mind, therefore, Raila conceding defeat, Kibaki resigning or the two sharing power does not provide a solution to the current impasse and will not lead to any lasting peace. A solution lies in the people of Kenya who as I shall illustrate shortly, are truly sovereign over and above the supremacy of their own constitution over any law.

The above will highly inform my opinion on a solution to the current stalemate. Being a lawyer, my study of jurisprudence can allow me to say without fear of contradiction that when the law loses its harmony with the aspirations of the people it is meant to govern, then it ceases to be effective in ensuring peace, tranquility and order within the society. It shall shortly be clear why I am saying this and why I do not agree with those insisting that ODM should go to court. I shall also demonstrate that if the constitution is given the wide interpretation it deserves then it can be found to offer an alternative solution that is better than asking ODM to go to court. Unfortunately it is only the court which can interpret the constitution yet the fact that it is faced with a lack of independence, it cannot be trusted to make such an interpretation. Our court system is adversarial and thus waits for parties to appear before it and present their case for it to make its decision. It cannot issue orders or decisions on its own accord and save parties unsure of its independence the trouble of subjecting themselves to it.

The real reason why we are caught up in the present stalemate is that our constitution has failed us. Section 1A of our constitution provides that the Republic of Kenya shall be a multiparty democratic state. This section was inserted in the constitution in the early 90s and signaled the success of the fight for multipartysm. With it came the deletion of section 2A which made Kenya a one party state. The sweet defeat of the one party rule closed our eyes to the fact that the mere insertion of a statement in the Constitution to the effect that Kenya would be a multiparty state was not enough to ensure multiparty democracy. We quickly forgot that since independence, we had been guided by the same constitution and it favoured a neo-colonial political environment where democracy was virtually pushed to the periphery.

It was wishful to imagine that the mere insertion of section 1A and deletion of 2A was enough to ensure a thriving democracy.

In a nutshell, a democracy is only guaranteed when:-

1.The decision of the majority carries the day, and

2.The rights of the minorities are protected.

There can be no democracy without any one of these two elements. Does our constitution guarantee the two? My answer is a resounding NO. Here's why. Take the hypothetical situation below.

In Kenya we have 42 tribes. Assuming each tribe was to come up with a presidential candidate to contest an election. Chances are that the Kikuyu candidate would win with a landslide. The decision of the majority will have carried the day and hence the first ingredient of a democracy will have been satisfied. Assuming then that after assuming power, the Kikuyu president decides to massacre everyone in Kenya except the Kikuyu people so as to be guaranteed of the presidency for eternity. Any person from any of the 41 tribes not to exclude any Kikuyu would be entitled to approach the courts to seek protection of the right to life not only of himself but also of any member of the 41 tribes facing the threat of extinction. You will all agree with me that so long as it is the person who is president who will chose who sits in those courts, the courts cannot guarantee the right to life.

Assume on the other hand that each of the 42 candidates who sought the presidency is a member of a national assembly that can propose names of people who can be judges and proceed to vote on who the judges shall be. Chances are that the judges will mostly be from the minority tribes if everyone in the house has one vote. If the judges are clothed with security of tenure they will be in a position to issue orders guaranteeing the right to life if indeed it is threatened. They will do this without fear of intimidation or the threat of being sacked or killed. This is the beauty of separation of power which our constitution is desperately begging for.

To demand therefore that ODM should go to court in the current impasse is to fail to appreciate the inability of the court to be fair and impartial. This is because section 61 of the Constitution empowers the president to appoint judges including the Chief Justice. Asking ODM to seek justice in such a forum is like asking an antelope to appear before a "baraza" of like minded carnivores appointed by the King of the Jungle. We can trust our courts to be largely impartial in other cases since judges are men of integrity but we cannot surely expect impartiality of the courts in a matter pitting the president who appointed its judges on one side against his challenger on the other. Justice, even if it is done will not be seen to have been done in the eye of the "mwanachi". The courts as currently constituted are incapable of dispensing with justice hence the decision they reach on a matter of such a unique character is unlikely to find acceptance among the Kenyan populace.

Even international law recognizes that domestic courts may not be well placed in adjudicating on certain cases. International courts have, therefore, ruled in a number of cases that the likelihood of inordinate delay and/or the diminished capacity of a domestic court to be impartial are exceptions to the international principle requiring persons to exhaust all local remedies before approaching an international forum or court. Enforcing the decision of an international court is nevertheless an uphill task since the only avenue open to the court is to seek the intervention of the UN, AU and/or other regional bodies in addition to asking states to impose sanctions on the state that has refused to comply with the court order.

In my humble opinion, therefore, the solution to the current impasse ultimately lies in the people of Kenya. The constitution recognizes the sovereignty of the people at section 1 where it provides that Kenya is a Sovereign Republic. Kenya in this context is not limited to the land, water and air within the borders of the Republic but the People of Kenya. Subjecting the People to another election, this time managed by an election body that is impartial and not sorely appointed by the president is the solution to the impasse. As I said earlier, a law is a law due to its ability to govern the affairs of its makers. The Constitution of Kenya is a creature of the People of Kenya. What we had in 1963 for a constitution is not what we have today. Many amendments have been made to it without consulting "wananchi" in a referendum. The result has been a document that favours the selfish interests of the elite and one that vests excessive power in the president as opposed to the elected representatives of the people. When one steals the presidency, he unfairly bestows in himself these powers and can use them to frustrate the people and their elected representatives.

It is my considered view that the people of Kenya will still be acting within the scope of democracy if they disregard the constitution if only for its failure to provide a democratic solution to the current impasse. What is being witnessed in the country is a loss of effective control of a vast area of its territory by the state. Law and order has collapsed creating room for anarchy and lawlessness. The Constitution is ill placed to address the problem.

Even if we labelled our Constitution in big bold letters "THE DEMOCRATIC CONSTITUTION OF THE REPUBLIC OF KENYA", it would not pass as democratic unless its ingredients reflect what a vast majority of Kenyans consider to be democratic values. This is because democracy is not democracy because the law says so but because its ingredients are universal and acceptable to all civilized nations and civilized people. If the sovereign (the people) want to see democracy done, why should the Constitution be allowed to stand in their way? The constitution, being a document made by man and man being prone to error, cannot accommodate every conceivable situation or eventuality. This is why amendments to a constitution are allowed and room given for wider interpretation than would be the case with ordinary statute. By amending it, man bends the constitution to suit him whenever circumstances change and not the other way round where the constitution bends him to suit itself.

It is the People who are supreme and the constitution cannot hold them hostage. Insisting on courts just because the constitution prescribes so even when we are sure that they (the courts) cannot justly address the problem facing us amounts to a suggestion that the supremacy of the constitution supersedes our sovereignty to exercise our will. A sovereign people cannot be slave to a document that has refused to grow with them. Such a document cannot be a constitution any more but a mere piece of paper if it is not in consonance with their aspirations. For a document to earn the title "The Constitution of the Republic of Kenya", it must have within itself a life synonymous to the spirit of the People of Kenya. The current Constitution has failed to live up to that spirit at least in as far as the current stalemate is concerned.

I beg to differ with the US which believes that the solution to the impasse lies in a power sharing formula. My reasons are three pronged.

First, power sharing was tried in 2002 but failed because it was based on an MOU. For it to work, it would have to be effected through a law and to be more precise through the enactment of a constitution. Unless the parties agree to an already existing Draft as being a sufficient power sharing document, it would take time to come up with a new document that is acceptable to the protagonists. A constitution is no constitution without the sanction of the people hence a referendum is inevitable. In a referendum the proposed draft can be accepted or rejected. If it is rejected, it means that we find ourselves back in square one. If it is accepted, we would still have to conduct an election to determine who would be President and who, Prime Minister (if also elective). This is an unnecessarily long path to a solution to the current impasse.

Secondly, power sharing undermines the importance of the opposition in any democratic state. When the Opposition and the State are bedfellows there is no one to act as a shield of the people against the excesses of the State.

Thirdly, it would amount to sweeping the problem under the carpet and will set a very bad precedence for this country. It would suggest that elections can be rigged and the winner and loser share power in shameful disregard of the sovereign's wishes. It would undermine elections and democracy and encourage dictatorship.

My appeal therefore goes to Kibaki and to the National Assembly. To the National Assembly to amend the Constitution to provide for a transparent fair Electoral Commission and to Kibaki to resign after such amendment to pave way for another poll. This needs to happen fast to avoid further bloodletting. A constitution that guarantees the democratic rights of Kenyans should then be the first business of parliament after the suggested resolution of this stalemate.

Kennedy M. Ontiti is a Lawyer and a Political Commentator