Written by Muciimi Mbatia
Wednesday, 13 February 2008

It appears quite in order to ask one simple question: why is power sharing being forced down Kenya's throat? It is clear that neither ODM nor PNU wanted power sharing. They all wanted everything.
Consider these facts:

* The ODM and affiliate parties have claimed that Hon Raila Odinga won the election. They have said they are holding evidence that can prove their contention.



* The PNU and affiliate parties have claimed that President Mwai Kibaki won the election fairy and was sworn as per the law. They too are said to be holding evidence to prove their contention.



* Each of these parties, together with the Electoral Commission of Kenya (ECK), have claimed that their presidential candidate received about 4 million votes. The ECK says it has evidence to back up its position.



* This was a closely contested election as indicated by the pre-election polls and the results.



* Observers have made all kinds of disparaging remarks against the ECK in particular and Kenya's capacity to hold democratic elections in general. Presumably, they too have evidence to back up their claims.

It seems that what we have is a preponderance of conflicting evidence that no one is interested in looking at. This means that whatever decision will be arrived at will not be based on an analysis of available evidence. It will be based on a hunch, a gut feeling that the election was stolen. Is arbitrariness what the much vaunted rule of law has come to? Now, here are the questions:

* Who resolves disputes in liberal democratic states? Is it not the courts? Why is Kenya being treated differently? Is there a double standard being applied here?



* The US, the UK, the EU and a slew of multilateral agencies have been spending huge sums of money ostensibly to build capacity in our Judiciary and to strengthen the rule of law. How does moving the dispute out of court aid the evolution of our own capacity to adjudicate over our own matters? Why was this money being spent in the first place if the same Judiciary whose capacity was being built was going to be ignored? Since the so-called "aid" for strengthening the "rule of law" were actually loans, doesn't this amount to money going down the drain which Kenyan taxpayers will continue repaying? Shouldn't donor agencies who are now egging disputants on in their disregard for the Kenyan constitution and law first forgive the debt before prescribing non- and extra- constitutional solutions?



* An important legal maxim holds that a good settlement is better than a good judgment. But a good settlement is good only if the parties prefer it over a judgment. If one party is unwilling, or if settlement is unworkable, the default practice is always to go to court. Why is this not being insisted upon in the case of Kenya as it clear that parties are not completely sold to the idea of a political power sharing comprise?



* Part of the problem afflicting Kenya has to do with suppression of memory and a certain disdain for confronting the truth. We swept issues of tribalism, land, tribal clashes and economic inequality under the carpet. The power-sharing approach is a continuation of this policy of suppression. By not insisting on an open legal solution that can be scrutinized, both ODM and PNU are complicit in the on-going suppression of the truth surrounding the December 27 election. How can we be expected to learn from this mess if we do not study and take our lesson from it?

ODM's argument that the judiciary is biased does not hold water. They have acknowledged the judiciary in many other instances. ODM has filed election petitions in the same Judiciary they are trying to impugn. Many ODM leaders have cases pending in the same courts.

Are we to believe that the courts are only biased when determining the presidential ballot? In any case, why can't this bias be put to the test for the world to see? It is, after all, a simple matter of analyzing evidence. If evidence has been tampered with as has been claimed, it should be easy to show how. All paperwork was signed. If a signature is not original, the court should be able to tell.

The claim by ODM that the judiciary is biased against them is very strange. There are nine justices in the Court of Appeal. It is a multi-tribal and multiracial court. Here are the Justices of the Court of Appeal and their tribal affiliation:

Chief Justice: J.E. Gicheru - Kikuyu

Justice E.O. Okubasu - Luhya

Justice E.M. Githinji - Kikuyu

Justice P.K. Tonui - Kalenjin

Justice J.W. Onyango Otieno - Luo

Justice R.S.C. Omolo - Luo

Justice S.E.O - Bosire - Kisii

Justice Philip Waki - Kamba

Justice William Deverell - White Kenyan

This tribal composition of the highest court is telling. There is an equal number of Kikuyus and Luos (two each), a major concession on the part of Kikuyus given that there are twice as many Kikuyus as there are Luos in Kenya. Again, some of these justices were appointed to the bench by retired President Moi, not Kibaki. The nine justices also include a representative of the Kenyan minorities, Justice Deverell. What emerges is a much more diverse court, a picture that is the exact opposite of the ODM propaganda that the court is full of Kikuyus appointed by Kibaki, who would rule in his favor. Given that some of the justices were appointed to the court by the previous regime, and given the ethnic composition of the court and assuming that justices will vote in line with the alignment of the respective tribes in politics, it is entirely possible that Kibaki will lose and ODM will win. The claim that the Judiciary is biased is therefore completely unfounded.

A matter as such importance as a Presidential petition can be heard by the Court of Appeal under a certificate of certiorari , meaning it can be heard expeditiously, and can be heard en banc, meaning the whole court can sit in judgment. Each justice would then have to write their own opinion after which a vote would be taken for the majority opinion. Dissenters would still get to put their opinions down for posterity bearing in mind that today's dissent might become the centerpiece for tomorrow's judgment. Equally, PNU's argument that ODM has been time-barred as it was supposed to challenge the results in court within three days is legalistic but spurious. PNU should realize that its legitimacy is dependent on ODM's burden of proof. PNU should therefore allow ODM to go to court to argue its case without being resorting to legalistic but unhelpful arguments.

What of the ECK? Everyone speaks of them as if they bungled the election. What if they are innocent? Shouldn't the ECK have the right to face its accusers in court? What is everyone afraid of? Is there fear that the credibility of election observers might suffer if their claims can't hold water under interrogation? Let's face it, election monitoring, while useful, is inherently authoritarian. You come, you see, you declare your verdict. No one scrutinizes your methodology for observation, or supervises the writing of your report.

Regardless of your verdict, no one questions your declaration or subjects it to any kind of analysis. Simply put, there is no one observing the observers. They retain immense power to name and confer legitimacy. Given the realities of global politics, I have always thought this was a major oversight on the part of the observed, but since these are rules they have agreed to, it is none of my business.

Power sharing as the easy way out
Power sharing is an arrangement that the parties are being forced to accept without exhausting available mechanisms that can aid constitutionalism and consolidate Kenyan democracy. Power sharing undermines Kenyan institutions and creates a dangerous political culture in which future disputes will be resolved through street battles in the expectation that the international community will send a star mediator to arbitrate our dispute outside courts at the behest of international interests.

In other words, the possibility of internationally enforced power sharing will always fail to force us to accept the rule of law. As Kenyan Ambassador to the US, Peter Ogengo tells it, after the 1997 election, Raila Odinga went to Ambassador Prudence Bushnell in the company of Ogengo to ask for the USA's support, claiming that Moi had rigged the election. She told him to follow his country's constitution.

This is the best advice Raila ever got. He was thereafter, forced to take to consociational democracy like a duck to water, co-operating with Moi and joining government before causing an in-party political coup that everyone agrees resulted in major gains for democracy in 2002.

Unfortunately, this time round, the US decided to handle the ODM with kid gloves. The results are street protest and violence, and now the reward, after the violence, of shared power, which will probably send the country two years back to 2005 when intra-Cabinet squabbles paralyzed Nairobi. True, and to be fair to the US, there was no way of knowing who won - but that is precisely why it should have been insisted that the ODM go to court so that the real can be established. If it established that Kibaki lost and rigged, then the presidency should go to the ODM without debate. Today it is the ODM resorting to streets and violence to get a share of the power. Tomorrow, it will be the PNU or some other party that has seen how the chips fall. What do we end up with? Uncertainty. Instability. A dependency syndrome. A stilted democracy. Underdevelopment. More aid. More poverty. More violence.

Like Kimunya said, when you see the neighbors/visitors mourning more than the bereaved, knows there is something very wrong with the set-up.

Kenyans should be skeptical of foreigners intervening to "save" us. We must realize that their interests in this resolution are self serving. Those interested in objectivity only need to look at the records of the said nations with regards to their interventions in developing nations. Read the article posted on this website on January 28, 2008 titled "World Economic and Financial Henchmen" the analyses done by John Mugambi and Lilian Nekesa is excellent. It speaks volumes of how the west looks at and treats developing nations.

I honestly forgive the majority of kenyans who do not have access to the information we have. I don't fault them individually when they blindly follow the orders of their myopic leaders, they don't know better, but we do. True statemen will look at the country's need from a long term perspective, politicians want a quick fix. Hence, the gridlock at the mediation talks. If the politicians prevail then we will be back in the same sitution in only a few years. At that time the number dead will be higher, the IDP will be even higher; the mental wounds of today will be barely healed and the descent into civil war will be inevitable.

While the work Kofi Annan is doing is positive, his comments in recent days have left me wondering if he is truly non-partisan, which a true mediator must be. I get the impression that he is taking orders from outsiders and is attempting to impose the outsiders solution on the kenyan mediation team. If this happens the talks will fail, and if they artifically progress, the agreements they sign will prove difficult to enforce.

In my opinion a coalition government cannot work. The government and the opposition view each other as enemies, hate each other and lack complete trust in each other. How then can they be asked to form a coalition government to run the country? If they do, they will accomplish nothing, and the losers will be kenyan public so desparate for a good education, healthcare, and security. Those leading the oppostion and those in the government will continue to live the lives of complete luxury and hire private bodyguards to protect them. The members of parliament will continue to collect their repulsively high salaries that they don't deserve, while the rest of the kenyans attempt to find the left over scraps to feed their families! What a bright outlook!

Those claiming it has worked in Germany, Japan and France during times of tight elections and when these countries found themselves at great crossroads have failed to take into account one thing. In kenya when the crossroads was arrived at, neighbours killed neighbours, innocent children were brutally hacked to death, old men were maimed, girls, women young and old raped etc.... I dare say that none of these gruesome crimes were committed in these nations at their time of great impasse. To add insult to injury at the mediation table sits a man who is alleged to have organized the ethnic cleansing that followed the election of 2007. I am sure if these had been factors in these said foreign grand coalition governments, they would have first and foremost pursued justice for the victims! This whole process is so twisted!

So my question is what makes them think that their solution to their problem can be extrapolated to work in Kenya? I say they are naively ignorant and must stay out of the business of kenyans so they can solve their own problems.

Again, their interests are self serving. Kenya needs statemen to solve their problems not politicians!

Wamax, if that is what Kimunya said I totally agree with him.

Kenya is at a crossroads and its solutions must come from within. We should not take pride in looking incompetent around the world, as the world comes to our "aid". Remember, nothing is free, there is a price to pay for everything. We need to rid our minds of "aid" & "welfare" mentality. Take ownership for ourselves, our fellow countrymen and our country so that we can move our country forward independently, but together as a people.

Peace to all!

This message has been edited. Last edited by: Jiku,

The government should take charge and close those ill adviced mediation talks with anan and odm losers.

the government should insist on kenya laws and constitution being followed. anybody who disagree with this directive should face kenya laws or international law where its applicable.

any law breaker in kenya should be prosecuted asp.

kenya government should start working by taking it responsibility very seriously.

it should deal effectively with all the foreign western governments evil loudmouth destroying kenya.

Well,there you go.Give the devil an inch and he takes a foot.If the head of government can't appoint his cabinet of choice, is it his govt still?

Ngii Ndume, you must have read the article in The Nation that our "great" leaders that formed the coalition can't agree on the number of cabinet posts and which side will have which ministry! Solution, they have called Kofi Annan to come and mediate as they dish out the cabinet posts!

I am truly disgusted but not surprised at all. Hopefully, we all saw it coming - afterall, most of those "great leaders" are looking out for their personal interest! Watch, now they are going to use the IDPs as a "football" -

Kenya needs new leaders!!!!!!!!!

Narc deja vu? An enemy within the govt,history will inform us the govt only performed after they left.It is a waste of time and an act in futility! Actions are needed not p'ple posturing for the media seeking idol worship.Lord knows how much i feel for IDPs for theirs is almost a lost cause now! That a very appropriate quote Jiku from a Mahatma!

quote:

Originally posted by Jiku:
Ngii Ndume, you must have read the article in The Nation that our "great" leaders that formed the coalition can't agree on the number of cabinet posts and which side will have which ministry...!

I read that crap and I was so disappointed. I couldn’t believe some ODM Mps warning Prezo and PM not to make the much touted reconciliatory tour of RV before the ministerial portfolios negotiations are over, sounded like kind of a threat. What are they going to negotiate next, PS positions, ambassadors, Judges, Pcs and Dcs perhaps even Doctors nurses and clerical jobs too. Dude, when is this gonna end?
That deal was a blunder.

Actually that is infact what they are asking for right now.The next item on their agenda only lord knows!! I say it again it was a fake peace deal and we should have staked our claim and hanged on tough .I do not like the idea of sleeping with the enemies.
Mr Odinga said: “The government is not just the Cabinet. There is the bureaucracy. As you are aware the permanent secretaries are all the time appointed afresh whenever a Cabinet is reshuffled. So nobody should claim that these are professional and so on. We want to be involved in appointment of PSs, diplomats and all other political appointees including heads of parastatals and their chairs.”

ODM has had a master plan on how to take over the leadership of Kenya, by winning the election, or if they lost, which was the case, through the backdoor, bloodshed or not was never an issue for them.

Did you all notice how nice Odinga was to the PNU leaders weeks before the new Reconciliation Act was passed? He had to tread the tight rope carefully to get the act through. They did, now they are going to play hardball until they get what they want. The civil service shouldn't be partisan, but no, they want to politicize it! They have to repay those who paid for their campaign, most notably in the west. They want their ambassodor seats, PS seats etc.... They whole thing is pathetic.

This is not about the people, the country and its future! It's about them! Power at all costs! Doesn't it bother anyone that most of them are so crooked, most have cases of corruption pending or looming in the courts?

Yes, it was fake peace, and the coalition government was a blunder. I say that because the average Kenyan will gain zero! Shouldn't the objective of having a democratic, progressive government be to benefit the average citizen? You can't tell these people to go out and do the peoples business, they are clueless - its all about them, them and them!

They have now said Kibaki & RO shouldn't visit the IDPS in the RV until a cabinet is named! That threat alone should make every reasonable kenyan sick to their stomach! It should serve as a clue of what is ahead for kenyans!

Kenyans need to wake up and smell the coffee!
Again, Kenya needs new leaders!

ONLY clean odm MP's should BE ALLOCATED the vacant ministers post. only clean odm mp's should be given those vacant ministers post.

ODINGA, ruto and mudavadi are not clean. 'sura-gani-hii-BALALA just like ruto, instigated post election violence and ethnic cleansing. they should be made accountable.

public service head mr. Muthaura AND pnu view/recommendation on the so called power sharing deal, are very logical and sane and should not be negotiable.

President Kibaki should only appoint and name new cabinet only after IDP's are safely resettled back in their homes and compeseted and peace has fully returned to the affected areas.

i propose the new cabinet be named only after kenya and the world has known who are the culprits behind the post election violence, the riggin and ethnic cleansing in kenya.

otherwise President Kibaki, and Vice President Kalonzo waendelee kutawala kenya with their great wisdom and love for kenya.

what other power sharing are people talking about, isn't the appointment of odm-kenya and the invitation of clean odm mp's to join the government not power sharing enough? that portfolio ballance issue look extremely ill-adviced. it should be rejected with the contempt it deserve by PNU.

PNU AND ODM-kenya LEADERS have proven to be very patriotic and exellent leaders with a great vision for kenya. kenyans need to support these leaders.

PNU and its coaliation partners need to ask odm this questions:

portfolio ballance ni munyama or kitu gani and whether it can be eaten?

This message has been edited. Last edited by: Beste,

Ladies and Gebtlemen (Especially Beste)

What is happening in Kenya right now is bigger than PNU and ODM combined. It's bigger than Kibaki and Raila. Since the powersharing deal has been signed, what's the problem?
Why is everyone singing ati Ruto should not be in the cabinet because he masterminded the clashes? What happened to `due process'?
In my opinion, the cabinet needs to be picked equally and fairly without conditions. Once the commission has established than someone in the govt has a case to answer, the he MUST step down.
Kwa hivyo nyamaza! We don't need more ministries that we already have. If Kibaki decided to create PNU and now doesn't have enough food for them, that shouldn't be wanjiku's problem!