Tuesday, April 16, 2013



P. Anyang' Nyong'o
Sunday, 14th. April

Africog, the good governance outfit led by Gladwell Otieno, launched a new Website in Nairobi last Friday called People's Court. The aim of this initiative is to give the people of Kenya an opportunity to find out what happened during the last elections especially with regard to the petitions that were presented or not presented during the Supreme Court hearings.

Africog says that many questions still remain unanswered and many statements made during the hearings still remain puzzling even as we await the statement by the judges now coming five days after the deadline given by the justices on the 9th of April.

The Website will give Kenyans an opportunity to continue asking these questions, post their answers even if they are speculative, bring forth some evidence which may shed some light on the issue and vent their feelings on an issue which will stay alive in the psyche of Kenyans for a long time to come.

Africog made it clear that it accepts the Supreme Court decision as final in the legal sense, but not final in the search for the truth. In other words, after the Court made its pronouncement in a rather casual manner for a matter so weighty, it left Kenyans no other legal option to pursue the matter since the Court is the final port of call for the pursuit of justice in Kenya. But this does not mean its decision was right. Hence, as Bishop Augustine of Hippo once said, "in the court of conscience there is no obligation to obey an unjust law." Likewise, the Africog Website is giving Kenyans, bothered by their conscience on this issue, an opportunity to discuss it and interrogate the court's decision so as to keep the court accountable to the Kenyan people.

Speaking during the launch, Maina Kiai drew the attention of the audience to articles 138 and 159 of the Kenyan Constitution. Reading Article 138 which deals with procedure of presidential election, one realizes that the evidence presented at the court showed clearly that this procedure was not followed as laid down in our constitution.

For example, it states that "all persons registered as voters for the purpose of parliamentary elections are entitled to vote." The IEBC could not say where the single authoritative register was to tell Kenyans who we could accept as " persons registered as voters" since there were so many different registers apparently used by the Commission in this election. This issue will be further discussed and ventilated upon in the People's Court website.

The article further states that "a candidate shall be declared elected as President if the candidate receives (a) more than half of ALL the votes cast in the election". The Constitution which is the fundamental law of the land does not delegitimize spoilt ballot papers since these too can only be designated as "spoilt" because they were legitimately cast by voters. The Supreme Court felt that, in its own wisdom, spoilt ballot papers could not qualify as "votes cast" in this particular election.

Maina argued that the Supreme Court seems to have ignored this article. In the face of the evidence produced before it, and more that was available in the affidavit by one petitioner it refused to be tabled--notwithstanding the strong legal reasons justifying the need for the evidence to have been presented--we are led to conclude that the court was wrong to ignore this article.

Article 159, dealing with "Judicial Authority" states, among other things, that "justice shall be administered without undue regard to procedural technicalities." If there was to be a case where the weight of this statement should have been given the attention it deserves, it was this case involving the election of the President of Kenya. But apparently this was not to be with regard to the manner in which important evidence was not given a chance to be presented on procedural grounds while the key respondent succeeded in keeping evidence away due to time constraints. Kenyans feel strongly about these issues and the website provides an opportunity to discuss them further so that next time the Supreme Court will realize that Kenyans take their constitution seriously.

In any case all the evidence that could have come before the court can now be posted on this website for Kenyans to see what went on during the last election. The IEBC will obviously  be held responsible for the many acts of omission and commission. The constitution says, in Article 88,  that "there shall be an Independent Electoral and Boundaries Commission". One of the issues that came up several times during the hearings-- and about which Kenyans are very keen--regards whether the IEBC truly exercised its independence during the just concluded elections. But the judiciary could only interrogate the independence of the IEBC if, in the first place, the judiciary itself is truly independent.

Some participants at the launch argued that launching the website after the court made its decision would be tantamount to "inciting Kenyans." Maina retorted that Kenyans have a right to search for and speak the truth. Such truth can only irritate the liars.

Others argued that "it is now time to move on. Whatever happened during the elections cannot be changed now." Maina responded by noting that if we don't get to know the truth we are bound to make the same mistakes again next time, with the same IEBC.  Justice Krieggler warned us after the 2007/2008 electoral debacle that we need to have proper electoral laws, institutions and procedures. We have spent enormous time and money doing exactly that, only to end up making the same or worse mistakes than we did last time. We have to be sadists if we insist on not seeking the truth so that we  can make the same mistakes in the future.

Yes, indeed, we should move on. But some are asking "moving on to where?" Hopefully the statement that the Supreme Court judges are going to make on Tuesday will help answer this puzzling question coming from Kenyans currently pouring out their frustrations in the social media. Most of them are young people who may lose faith--or have already lost faith--in the electoral process. So the issue cannot simply be reduced to the simple idea of "moving on." The Africog website will provide a venue where a thousand thoughts will contend and a million ideas will bloom so that Kenyans can collectively move on having genuinely come to terms with what happened not out of the tyranny of silence but out of the liberating power of the truth.