Is Raila such a monster that his democratic right to go to court and complain against Uhuru’s victory should be absolutely opposed; yet he said “Kibaki tosha” and his father Jaramogi Oginga Odinga said: without Kenyatta’s freedom and leadership there would be no independence for Kenya, both in favor of Kikuyu presidents. Either people are completely ignorant of history, democracy and need to defend rights, and therefore need civic education on democracy, or having forgotten the horrors of one party dictatorship, the less informed members of society are hankering for a second dictatorship led by one of their own.
My experiences with dictatorship however taught me that however imperfect democracy is, nothing is worse than dictatorship. I must therefore always stand opposed to it, even if everyone else in Kenya supports it. Dictatorship – even of opinion – has never been and will never be an option for me. Whatever I think of the merits and demerits of Raila’s petition to court, I must defend his right to go to court because I cannot bear the thought of living in a society where Raila or anybody else is not free to go to court if one wishes. A country that does not legally allow its citizen to go to court or whose society pressurizes anyone not to go to court merely because it disagrees is not a country or society I would like to live in. Even if we think Raila’s petition is too weak to win, he must be free to take and lose it in court.
Though I am Kikuyu and Raila Luo, in defending his right to go to court, I also defend my own right to defend Raila’s right to go to court without anybody labeling me “traitor” or “enemy” unless we want to go the Rwanda way. Indeed, I define, claim and defend my Kenyanness by defending Raila’s democratic rights as a Kenyan and human being. When people are reluctant to support other’s right to complain against whatever they consider unjust, it reminds me of a story called, “mtego wa panya hushika waliokuwemo na wasio kuwemo.” A farmer had put a trap in the store to catch a rat. One rat saw it and sought help from a cow, a goat and a cock all who refused to help saying it was none of their business. Ultimately, the trap caught a snake that bit and killed the farmer when he went to check. As people mourned, the cock was slaughtered for them. After the funeral, the goat and the cow were also slaughtered for more mourners, making the rat’s problem, everybody’s business.
The culture of instilling fear and silencing dissent is creeping back. Those of us who suffered dictatorship in the past must remind others that political intolerance is not something we can allow back without terrible consequences. In his book, “The Man Died”, Wole Soyinka says when we see an injustice and keep quiet, the man in us dies. When somebody tries to silence Raila and we say nothing, we let the man in us die. Individual silence is our collective suicide.
By: Hon. Koigi Wa Wamwere
About the Author
Download CORD Petition Summary: http://www.kenyademocracyontrial.com/#
This is another crap from Koigi! Is it Raila’s issue or the credibility of Kenya’s electoral process.?
1.14 The First and Second Respondents conferred undue advantage to the Third and Fourth Respondents and their political parties or the Jubilee Coalition by sharing a server with them for purposes of the electronic transmission of results from the various polling stations at the said election.
1.15 In the course of the polling day, it came to the notice of some members of the public, that the officers of a company by the name Kencall EPZ Limited, a call centre, was receiving the results of the general elections and the specifically the Presidential ones.
1.16 That upon investigation it became clear that the said Kencall EPZ Limited, in reality was a call centre that was used as a gateway that linked the First Respondent titled African Focus CRM and has a web address https://www.intranet.kencall/apps/IEBC and the TNA known as Marketrace on the server and whose web address or URL is https://www.intranet.kencall/apps/tna.
1.17 The First Respondent’s database and the TNA database was hosted by the said Kencall EPZ Limited on the same server with IP address 196.1.26.40 during the said presidential election;
1.1 This clandestine arrangement of co-hosting databases is not permissible by law and indeed was not disclosed to the public or to the Petitioner and his political party or the CORD Coalition. The same compromised the independence and the integrity of the First Respondent and that of its data in that the TNA, URP and Jubilee Coalition was able to access the First Respondent’s database and intervene and/or manipulate the results of the election as the same was being transmitted from the various polling stations in the said election;
1.2 This clandestine arrangement provided an opportunity for tampering with the results of the presidential elections.
1.3 The Petitioner shall contend and prove that the two databases were mirrored with one another, to wit, they were synchronized, hence when an entry was made or edited on one database, it would similarly be synchronized, made or edited and correspondingly reflected on the other;
1.4 The Petitioner shall further content and prove that several people were employed and trained for the purpose of the elections to key in data into the TNA and Jubilee Coalition database. It was this data which was then used to doctor the Forms 34, 35 and 36(a) and were ferried to the First and Second Respondent for use to make the announcements at the Bomas of Kenya leading to the unlawful declaration of the Third Respondent as the duly elected President on 9th March, 2013;
1.5 Quite conveniently, and by design, the First and Second Respondent had meanwhile, delayed the ferrying of such results from the polling stations under the pretext that steps were being taken to rectify the system failure that had stopped the electronic relaying of results of the election;
1.6 After more than twelve (12) hours had lapsed following the official close of polling, the First and Second Respondents then, in a bid to deceive the people of Kenya, announced that arrangements would be made to airlift Returning and Presiding Officers from the 290 Constituencies of Kenya when in fact there were no immediate plans to do so;
1.7 Despite such assurances, it was not after a period of over eighteen (18) hours had lapsed that any such officers in fact started to arrive at the Bomas of Kenya which was the National Tallying Centre for purposes of the said election, and even then, the last of such officers did not reach Nairobi until the fourth (4th) day after close of polling, to wit, Thursday, 7th March, 2013.
1.8 The above arrangement and illegal design provided an opportunity for the First Respondent’s database to be manipulated in favour of the Third and Fourth Respondents, their political parties and the Jubilee Coalition thereby putting them at a distinct advantage relative to the Petitioner.
In the documents submitted, Raila does not claim to have won the elections contrary to remarks he has repeated in news conferences and other fora.
He is seeking a declaration that Uhuru and by extension Ruto, were not validly elected. Uhuru did not receive more than half of the total votes cast as required by the constitution and was hence not validly declared winner.
He wants the certificate issued to Uhuru by the IEBC cancelled.
The constitution provides that if the Supreme Court invalidates the election, a fresh election must be held within 60 days.
The constitution does not have a provision for the Supreme Court to order a run-off, which is only anticipated if no candidate garners either 25 percent of the votes cast in at least half of the counties or gets more than 50 per cent of the total votes cast.
A fresh election if ordered would include all other presidential candidates and any other candidates that may be nominated by political parties or even join the race independently. Such an election would be different from a run-off, which would involve only the top two candidates.
Raila argues that under the Elections Act, voter registration cannot be conducted 30 days to the elections. He claims according to figures gazetted after the registration of voters on December 18, 2012 there were 14,267,572 yet during the declaration of results the IEBC claimed there were 14,352,533 voters.
“The IEBC increased registration by 85,000 voters in clear violation of the constitution, the Election Act and the IEBC Act,” the PM says.
“All and any votes cast under such circumstances are thus unconstitutional and invalid. The consequence is that the purity of the election was polluted and the result of the poll was materially affected,” his petition says.
Raila says the commission failed to carry out transparent, verifiable, accurate and accountable election as outlined in Article 81, 83 and 88 of the constitution.
Election Dispute Big Test for Kenya’s Top Judge
By RODNEY MUHUMUZA and JASON STRAZIUSO Associated Press
NAIROBI, Kenya March 11, 2013 (AP)
Confidence was so low in Kenya’s courts after its 2007 election that people preferred to settle their disputes with machetes and bows and arrows. After this year’s disputed presidential vote, there has been no violence, in part because of the faith the country has in its highest-ranking judge.
Chief Justice Willy Mutunga will soon preside over the biggest case of his short judicial career. Last weekend the country’s election commission named Deputy Prime Minister Uhuru Kenyatta the winner of the March 4 presidential election with 50.07 percent of the vote.
Prime Minister Raila Odinga is challenging that result, saying there has been massive rigging. Odinga’s camp said Tuesday that the prime minister was cheated out of 1.8 million votes, a margin that would give him an outright win.
The March 4 election was the first since postelection violence killed more than 1,000 people in 2007-08. This postelection period has not seen any violence. Odinga asked his supporters for calm, and Kenyans seem to have more faith in their government.
Mutunga on Monday said the election case would be heard “impartially, fairly justly and without fear, ill-will, prejudice or bias and in accordance with our constitution and our laws.”
Mutunga’s career as a social and political activist has placed him near Kenya’s top politicians for decades, and he’s shared his opinion on them. One quote from the 2006 book “Raila Odinga: An Enigma in Kenyan Politics” may become an issue for the case he soon presides over.
“I am convinced Kenya’s transition needs Raila as the president of this country,” author Babafemi A. Badejo quotes Mutunga as saying.
Mutunga has been “a committed activist in the pro-democracy movement in Kenya since the 1970s,” according to a biography posted on a Kenyan government website.
Unlike other judges in Kenya, many who know Mutunga believe his independence is genuine, and is unlikely to be persuaded by bribes or threats. Mutuma Rutere, of the Nairobi-based Center for Human Rights and Policy Studies, said fairness is Mutunga’s “biggest asset.”
“There is enough evidence that he can be depended upon to preside over this issue in an independent manner,” said Rutere, who worked with Mutunga at the Kenya Human Rights Commission. “His whole life has been about promoting justice and democracy.”
Mutunga knows Odinga well. In the late 1970s, as former Kenyan President Daniel arap Moi consolidated his hold on power, Mutunga was jailed in 1982, the same year Odinga was detained for alleged treason. Later the two joined a pro-democracy group called the Young Turks.
In the book “Raila Odinga,” Mutunga is quoted as saying Odinga “is a nationalist and a patriot. He has always struggled against dictatorship and oppression and been for social justice.”
“Though it may sound contradictory, he is also an ethnic baron. He has not sorted out this contradiction in his life. He uses both nationalist and ethnic cards for the advancement of his political projects,” the book quotes Mutunga as saying.
Kenya’s 2010 constitution was passed in the wake of the 2007-08 tribal violence. It gives Odinga until Saturday to file his election petition and Mutunga’s court two weeks to rule. Kenyatta cannot be sworn in until the case is closed.
On Tuesday, Odinga’s team said it is seeking an order from Kenya’s High Court to compel the election commission to produce electoral registrars and other documents used in the vote count. Odinga’s team says the documents can help prove Odinga was cheated out of 1.8 million votes. It said the election commission is operating under a cloak of secrecy.
“This is a serious indictment on the integrity, ability and above all honesty of the” election commission, Education Minister Mutula Kilonzo said.
Though Mutunga has a reputation for fairness and independence, the Odinga case will present new, difficult tests in a country with a history of extra-judicial executions and unexplained disappearances. Even before Kenyans voted, a letter attributed to a violent gang circulated throughout the country warning of “dire consequences” if Kenyatta was blocked from running.
Kenyatta faces charges of crimes against humanity at The Hague-based International Criminal Court, and his eligibility to run for president was being tested in court.
“If anybody, any candidate, any party, any agency, or any other actor thinks that it will bend the ear, mind and resolve of this chief justice to do anything that is unconstitutional or illegal, then they are mistaken,” Mutunga said in statement in February.
Mutunga, 65, was born into a poor family among the Kamba people of Kenya’s eastern province and has degrees from universities in Kenya and Tanzania. He has taught constitutional law at the University of Nairobi. After his 1983 release from prison he went into exile in Canada, where he earned a doctorate in law at Toronto’s York University.
He returned to Kenya in the early 1990s. Before being named chief justice, he had never been a judge. He has spoken out in defense of homosexuality in a deeply conservative society and is described as a proponent of “neoliberal” judicial reform. He wears a stud in his left ear, an item that became a publicly debated issue as he was named chief justice.
Out of 10 contenders for the job, Mutunga’s name was the only one forwarded by the Judicial Service Commission to President Mwai Kibaki. Mutunga’s appointment was approved by lawmakers in June 2011.
Gladwell Otieno of the Africa Center for Open Governance, a pro-democracy group in Nairobi, said Mutunga has been a good chief justice. She notes that he is one of only six justices, however. A seventh seat is vacant, opening the possibility of a split decision.
“Ever since he took over the judiciary public confidence has been rising steadily. It’s quite high now,” Otieno said. Odinga supporters “may expect him to rule in their favor… but he’s not alone there and it depends on the quality of evidence they present.”
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Associated Press reporter Tom Odula in Nairobi, Kenya contributed to this report.