Tuesday, September 23, 2008



Kenya Times
Nairobi, Kenya
Tuesday, September 23, 2008

Story by: Hassan Kulundu

The Independent Review Commission (IREC) appointed to probe what might have gone wrong when handling last year’s general election results has presented its report and many Kenyans are still not amused by its findings. I am infact baffled by the Commission’s report which was presented by its chairman Johann Kriegler. And despite getting the endorsement of former United Nations secretary general Kofi Annan who described it as ‘wise and bold,’ the report honestly falls short of intelligent expectations and critics should not be blamed for poking holes in it.

But when confronted by a barrage of criticism after he said he could not tell who between President Mwai Kibaki and Prime Minister Raila Odinga won or lost last year’s presidential elections despite months of countrywide interviews and audit of electoral documents, Kriegler challenged Kenyans to review his report with their minds and not their hearts. In essence, Kriegler wants those criticising his report to do so with reason and not emotion.

To this end, I want to take up Kriegler’s challenge and make an intelligent critique of his report, and in so doing, I wish to cite British philosopher Bertrand Russell who asked: “Is there any knowledge that is so certain that no reasonable man would doubt it?” Applied to Kriegler’s report, the question would then be; is this report so sacrosanct that no reasonable Kenyan who knows what happened between December 27 and 30, 2007 could doubt it? To answer the foregoing question, I submit that the first criteria of acknowledging the integrity of a report such as Kriegler’s is to look at the competence of people who did the job.

I don’t doubt the professional ability of Kriegler’s team as members of the legal profession. But the question I put forward is; were the right people given the right job to do? Here I have my reasonable doubts if at all people of Kriegler’s profession were the right ones to perform the enormous task of unraveling the truth behind what many Kenyans feel was one of the most blatant electoral frauds in recent history.

There is a misconception in Kenya that lawyers are omniscient (all knowing) and that is why they are given leading roles in constitutional making and even entrusted with complex tasks like conducting investigations in commission of inquiry. But what many Kenyans fail to understand is that the kind of training lawyers undergo does not prepare them to seek knowledge beyond that assumed by their profession.

If Kenyans cared to seek to understand the philosophy behind lawyering, they would be clever enough in future to pursue a proper division of labour when dealing with certain matters of catholic importance. In this regard, the task of probing what went wrong in last year’s elections required people who are trained to seek knowledge beyond the obvious, people not contented with appearances. It required people capable of seeking new knowledge through an intelligent synthesis of ideas and people capable of constructing a chain of self-evident truths through a rational calculus of probabilities.

But judging with the benefit of hindsight, I must say that lawyers are not trained for the kind of task that Kriegler’s team plunged itself into and I am sorry to say that the commission did not have the right professionals for the task. Kriegler and his team could be excellent lawyers, but I doubt if they make excellent investigators and that is why the whole exercise looked like one where football coaches were recruited to handle the economic meltdown on Wall Street.

First and foremost, it must be understood that a commission of inquiry is not necessarily adversarial or litigatory since nobody is on trial. But in the IREC case, we see people who would most likely apply their litigation skills as lawyers to a task that requires application of logical skills in propositional calculus. I say so because lawyers are trained to deal with facts available to them and anything not known and available to a lawyer is irrelevant.

In this way, lawyers tend to think in a straight jacket and that’s why, for example, they easily commit an epistemic fallacy when they argue that there can be no murder where there is no dead body. Such a fallacy only makes sense to a lawyer, but not to a logical epistemologist. I have cited the foregoing analogy because I want to challenge Kriegler’s assertion that there was no rigging or alteration of poll results by the Electoral Commission of Kenya merely because his team did not find any evidence to that effect.

This was a team dealing with oral testimonies and documents availed to them by the very discredited electoral officials and that is why it required a much more critical mind than a lawyer’s to decipher the truth. I have read in the preamble of the report the methodology used by the team to verify the authenticity of the documents they reviewed and that used to cross-examine the oral testimonies from the people who appeared before the commission in order to determine prejudiced testimonies from honest ones.

But while such a methodology works for lawyers, it is not sufficient for investigators. On this score, I wish to remind Kriegler that there is knowledge beyond the reach of man’s five senses, and go ahead to pose: “If a large branch falls off a tree in the middle of the Amazon but there is nobody to see it fall or hear the sound of its fall, would it be correct to deny that it did not fall?” Hence, Kriegler gave Kenyans a report that sounds like a typical judge’s ruling in a trial where the prosecution failed because it could not meet its burden of proof in line with conventional rules of evidence.

And since he was dealing with circumstantial evidence, Kriegler expected to see a situation where the incriminating facts point conclusively to the guilt of the accused persons and not compatible with any reasonable hypothesis pointing to their innocence. It therefore appears that certain potentially culpable people telegraphed Kriegler’s way of thinking and availed to him facts that would exonerate them from any electoral malpractice.

Apart from the epistemological weaknesses in Kriegler’s report, I have read and listened to the oral defence of it and found the report to be weak in areas it had no reason to be weak but strong in irrelevant ones. For example, the bulk of the report is nothing but a lamentation over how weak Kenya’s electoral system is. But Kenyans don’t need to be reminded over and over how weak their electoral process is; they already know that since they dealt with this issue comprehensively during the deliberations at Bomas during the aborted constitutional review process.

What Kenyans wanted to know is a verdict that would effortlessly enable them pin-point what went wrong during the tallying of 2007 presidential election results and who was responsible for it. It served no purpose for Kriegler to present a catalogue of obvious mistakes and weaknesses and go ahead to blame institutions without citing the people who were incharge of those institutions. Ballot papers don’t count themselves, its people who count them and these people have names.

Hence if there were errors in counting, certain people must have made those errors and Kriegler would have done a better job by naming those people since nothing in his terms of reference prohibits him from doing so. We cannot forget that Kenyans used the same electoral system in 2002 and during the 2005 referendum and got the mathematics right. What happened this time round Mr Kriegler? In taking the path he did and his terms of reference notwithstanding, Kriegler ended up committing the informal fallacy known as ignoratio elenchi (ignorance of refutation).

This fallacy is a result of failing to keep to the point in an argument and is also called ‘irrelevant conclusion or missing the point.’ Such a failure of relevance is essentially a failure to keep closely enough to the issue under discussion. For example, during a criminal trial, the prosecutor may display the victim’s bloody shirt and argue convincingly that murder is a horrible crime instead of demonstrating that the defendant is guilty of murder.

Hence it is one thing to show that a murder was gruesome but another thing altogether to prove that so and so committed the murder. And of all people Mr Kriegler must be assumed to know this. In this regard, Kriegler’s team ended up with an irrelevant conclusion because Kenyans expected to be told who committed the electoral fraud and not to be reminded of why they should get their math right.

But despite its incurable weaknesses, Kriegler’s report succeeds in enabling Kenyans make a very legitimate inference. Kriegler said that the conduct of the 2007 elections was so materially defective that it is impossible to establish true or reliable results for the presidential elections. With such a verdict, logic tells you that benefits of a flawed process are illegitimate and what Kriegler shied away from saying is that Mwai Kibaki is a beneficiary of a flawed process.