An appreciation for church leaders and diplomats pushing dialogue in Kenya; next steps?

Someday, my hope remains, administration of elections in Kenya can be a straightforward and transparent affair that is not the stuff of secrets, drama and death.  However, that is not an option on today’s menu.  Church leaders by first speaking out earlier on the need for reform of the IEBC, followed by a call for dialogue now with escalating tensions and killings by police, have served the needs of the mwananchi; the foreign envoys who have spoken collectively both publicly and presumably privately during the recent opposition demonstrations and crackdown have added muscle toward an a needed de-escalation.

Next steps: let’s lance the boil of secrecy in the administration of elections; I firmly believe that Kenyans can be trusted to know how they voted and that counting votes in Kenya does not really have to be harder than in other countries.  

Without the secrecy, the opportunity opens for the more patriotic and more humane voices within the policitical process, both within parties and in civil society, to come to the fore.

“Media Zombie” stirs as Kenyan legal process moves forward [updated]

[Update: here is the Sunday Standard, “How Raila’s poll petition may change the whole game”]

“The many questions IEBC needs to clear with Kenyans over elections.” The Saturday Nation

The “media zombie” awakes with a recitation of damning basic questions about the systems employed by the IEBC.

AfriCOG and other Kenyan civil society groups were left as lonely voices before the election while the public relations of the IEBC and the rest of the Kenyan Government, propped up as best I can see so far by the “western donors” (with money from taxpayers like me) and the “aid industry” peddled false assurance. I will have to admit that the situation is significantly worse than I had realized.

And then beyond the systems that were not even seriously in place, we have the specifics of bogus numbers coming out with election challenge petitions by AfriCOG and by the CORD campaign filed today. So much like 2007 only worse in terms of a mass “overvote” in the presidential race.

“Halt the Party, It’s not yet Uhuru”, Wycliffe Muga in The Star.

In the New York Times, Jeffrey Gettleman notes the extreme pressure on Kenya’s judges:

The case is sure to be a test of Kenya’s recently overhauled judiciary. It is now much more widely respected, but some analysts have questioned whether all six Supreme Court justices will be able to withstand the pressure of refereeing such a high stakes contest for power. Even before the election, the chief justice received death threats, and analysts have raised questions about the independence of some of the other justices.

What does Kenya’s High Court ruling on the civil society challenge to Uhuru and Ruto eligibility for election say about the state of Kenya’s judiciary?

The Nairobi media reporting is a bit garbled but the gist of things is that the Kenyan High Court (as opposed to the Court of Appeal or the Supreme Court) has dismissed a petition filed some months ago by civil society groups, including significantly the Kenyan Chapter of the International Commission of Jurists, challenging the eligibility of many of the candidates for President of Kenya on the basis of the “integrity” provisions of the new Kenyan Constitution.

Almost 13 months ago I posted that it was time for Kenya’s judicial system to answer the question posed regarding the application of these constitutional provisions to the candidacy of those facing confirmed charges from the International Criminal Court.  Unfortunately, even though the election has ended up being set for a delayed date, the Kenyan court system has still managed to let the clock seemingly run out without reaching any clarity or finality, such that the election is expected to proceed with the “Uhuruto” ticket on the ballot.

Without having a copy of an opinion yet, from the media reports, the High Court ruled that it did not have jurisdiction over the challenge because the constitution vests exclusive jurisdiction in the Supreme Court over challenges involving the nomination and election to the presidency and that further the jurisdiction of the Kenyan courts and ICC was concurrent and with the ICC case proceeding only the ICC could bar the indictees from running for office.

As an American rather than Kenyan lawyer, and having not read the opinion, I don’t want to go too far into the details here, but I would note that (1) Ruto as opposed to Uhuru is no longer running for president, so the practical question now for his eligibility is distinguishable; (2) the High Court has original jurisdiction to interpret the provisions of the constitution, which seems to me to clearly be the issue here–as opposed to a more ordinary nomination or election challenge which would seem to me to be a more plain way to interpret the various constitutional provisions as a whole.

Here is a long quote from the Daily Nation story “Jubilee, Cord plaud ruling on eligibility case”:

Mr Odinga on his part said he respected the ruling saying that the court had held that in matters relating to the presidential election, the Supreme Court had ‘exclusive and original jurisdiction.’

“I have repeatedly said that my main competitor should have the opportunity to face me in a free and fair election whose outcome is determined by the people of Kenya,” said Mr. Odinga upon hearing of the Court’s decision.

But Restore and Build Kenya (RBK) presidential candidate Prof James Ole Kiyiapi accused the judges of failing to give Kenyans directions on matters of integrity.

“By declaring that they lack jurisdiction, Kenyan courts have failed to give the country direction on matters of integrity as outlined in chapter six of the constitution,” he stated.

The five High court judges – Mbogholi Msagha, Luka Kimaru, George Kimondo, Pauline Nyamweya and Hellen Omondi – dismissed a petition filed by civil society groups challenging Mr Kenyatta and Mr Ruto;s suitability to run for the presidency and deputy presidency as they face serious crimes at the International Criminal Court (ICC).

The Judges ruled that despite the serious nature of the crimes facing Mr Kenyatta and Mr Ruto at the ICC, they are still presumed innocent until the contrary happens.

“It is common knowledge the two have been indicted but since Kenyan courts and the ICC are of concurrent jurisdiction, we cannot adjudicate over the same matter. Only the ICC can bar them to run for public office,” ruled the judges.

They ruled that the High Court had no jurisdiction to hear any petition relating to presidential candidates’ nomination.

So I tend to agree with Prof. Ole Kiyiapi that the High Court has ducked the issue and left a real lack of clarity as to the meaning of the constitution.  The problem is appeals and further proceedings are now unlikely to have time to be resolved before March 4.

Fiasco

“If how we did nominations is how we shall hold elections, God save Kenya,” Mituma Mathiu in the Daily Nation:

The political party nominations are a complete, utter fiasco, and they tell us a great deal about Kenya’s political culture.

First, and this is what puts the lives of all us in danger, is that politicians are a law unto themselves. . . .

Political ‘wedding day’ in Nairobi

Ballot for President with the Nine Nominees
PRESIDENTIAL BALLOT FROM 2007

Today was the deadline for filing of pre-election agreements between and among Kenya’s political parties. No big surprises in terms of the basic shape of the Odinga-led versus the Kenyatta-led groupings. As this is a non-partisan blog, and I don’t vote in Kenya as an American, I will not be suggesting how Kenyans should vote or endorsing anyone, but I’ll share a few quick thoughts “from where I sit”.

The agreement of Vice President Kalonzo Musyoka to be Raila’s running mate seems to have come down to the wire, although it is a bit hard for me to see how this would be too much of a surprise to people paying close attention.

Ostensible ODM Deputy Prime Minister Musalia Mudavadi, Raila’s running mate last time, joined Uhuru Kenyatta’s TNA grouping at the last minute, but he has been out of ODM and on to UDF for a long time and has long been seen as the potential “compromise” candidate to substitute for Uhuru and/or Ruto in the event the Kenyan courts were to ultimately disqualify either or both of them due to the ICC cases or some related complication. It would be risky for Uhuru and Ruto not to have someone suitable in that role.

On the Odinga side, the new CORD grouping has picked up Charity Ngilu and NARC along with Kalonzo which means he has picked up both sides of a division within “Eastern” politics and added a woman of longstanding political stature. With both Kalonzo and Moses Wetangula, CORD has two former Foreign Ministers, with Kalonzo in particular having been around a long time in diplomatic circles. He is someone with whom those in foreign capitals who are concerned with Kenya’s stability as a perceived regional anchor will be used to and comfortable with.

Absent the ICC situation, Uhuru and Ruto would be potentially attractive to some in the West as representing the notion of a mini “grand coalition” appeasing the elite of the combatants in the violence related to land and political boundaries in the Rift Valley that has normally coincided with Kenyan elections post-Cold War and they will be well funded to try to sell that pitch irrespective of the pending charges. I have a hard time seeing them get any traction, but I have been wrong before.

No disrespect intended to the other candidates–another post for later. The whole thing will be fascinating to watch, but scary due to the real dangers.

Good piece in today’s Financial Times from Katrina Manson in Nairobi.