Friday, September 19, 2008



The Standard
Nairobi, Kenya
September 19, 2008

By Kipkoech Tanui

As Justice Johann Kriegler handed over his report, which says nobody can tell who should be at State House, an old joke crossed my mind.

It is about a man of God, old and emaciated, who called in his lawyer and doctor on sensing his time had come. He had the medic sit on one side of his bed, and the lawyer on the other.

The lawyer, being ever the inquisitive one, asked the old man why he had chosen to be with them as he exited the world. The old geezer took a deep breath and mumbled: "Even Jesus Christ died between two thieves…"

Kriegler, born in 1932, is a lawyer and knows his stuff. His client list has included the likes of South African Zulu leader Mangosuthu Buthelezi.

The records of the founding chairperson of Lawyers for Human Rights ring loud: "Between 1976 and 1983, Kriegler served intermittently as an acting judge and in 1984 was appointed to the Transvaal Provincial Division of the Supreme Court.

"Between 1990 and 1993 he acted in the Appellate Division and was permanently appointed to the Bench there in 1993. In December that year, he was appointed chairperson of the Independent Electoral Commission, whose task it was to deliver South Africa’s first elections based on universal adult suffrage."

His verdict on last year’s General Election seems to have been borrowed from Psalmist teachings on Solomonic wisdom. First he said: "Claims of rigging at the KICC tallying centre cannot be sustained, contrary to widespread rumour…"

What a rude reminder of Mr Samuel Kivuitu, the heavy security presence, and the hurried private swearing-in ceremony.

The second pointed jab appeared directed at President Kibaki (probably bearer of the grand title only on the strength of being declared winner by the Electoral Commission and being sworn in), and Prime Minister Raila Odinga (who derives his title from the National Accord and Reconciliation Act).

It ran: "Even if you wanted re-tallying of results, you won’t have sorted out the mess. It would have been impossible to tell who won and who lost…"

His recommendations are far and wide and amount to piecemeal amendment to the Constitution.

His post-mortem opened up the usual: Bribery, manipulation of the voter register, ‘inciteful’ and biased media, intimidation and ballot stuffing.

Kriegler’s verdict and free offer to help in renaming and reforming the ECK took me to the cleric’s deathbed. The only problem I have, and which Kriegler appear to allude to, is that the ‘healing’ progress will not just be from the point of law. It is how politicians will use it, and for what gain. All the rest is legalese and a lot of English.

I expect that the same 50-50 per cent allocation of blame, equitable distribution of culpability and talk of lack of clarity on who did what will come from the Justice Philip Waki Commission on post-election violence.

Political solution

The point I am making, which is unpopular but nonetheless a reality of local politics, is we need a political rather than a legal solution. Only a mad man would have expected Kriegler to give his version of who won; we would be back to the street chaos. (By way where did the ‘National Cohesion’ part of the Justice ministry go and when will Kibaki and Raila carry out unity outreaches?)

It would not have mattered who won, my understanding of commissions is this; buy time, let emotions cool down, then make both sides to a dispute equally guilty in the verdict and propose reforms the way forward for the sake of generations to come. That is what our forefathers taught us about feuding spouses; you do not in the council of elders, blame one all through and exonerate the other. That is why it was so easy for the President (lawyers are costly so I won’t say much on the deservedness of the title) to say he would take it to a Cabinet that includes people whose fate he would not have worried about in January through to April.

Politicians are bound by a silent code of working together when the opportunity guarantees mutual visibility, glamour and power. They will probably exchange knowing winks as they plough though the Kriegler report. But wait until the next election comes knocking!

That is why I am worried about 2012 and the new form of African ‘democracy’ Kenya, followed by Zimbabwe, have given the world.

But just asking: Would Kenya have survived if we, since we do not know who actually won, were to go for a re-run of the polls?

I guess you must have come across the counsel: "In a way, I’m a thief just the same as you are. But I won’t sell you hope when there ain’t any."

That could have been about politics at its best and worst.