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PazaSauti.com

Monday, January 21, 2008

Why Raila should prepare for his day in court.

As I have said before, I am 'ODM damu'and I believe that this election was stolen byMwai Kibaki and his cronies. I believe that this atrocity is unforgivable and those

responsible should be charged in a court of law, for treason against the Kenyan people

and receive the due penalty. Having said this, I am only open to peaceful means to

resolving this impasse. My objection of violence is based on the same reasoning thatdemands that this electoral fraud must be resolved. The instance we perceive options

outside participatory democracy, as viable means to obtain political power, be they

electoral fraud or coercive means, opens a Pandora's Box that offers legitimacy toillegitimate means. I am of the opinion that ODM should prepare for its day in court. I

know this is an unpopular opinion in my ODM circles, I recently polled some of mycolleagues on this question and a solid 85% were categorically against the idea,

understandably so, because this opinion does not guarantee success and involves

significant risks.

The first risk is one of principle - in going to court, in petition, one is accepting even

though partially, or in interim, the legitimacy of this executive and allowing it tofunction, and exercise its full constitutional mandate as appointed by the people, and we

all know this is not the case. The fact that the position that is disputed is the head of

government, head of the military as commander in chief of the armed forces and the

ceremonial leader of the nation, demands that this leader draw his mandate from the

people and this be a true mandate. Therefore, as the court runs its course, we as Kenyans,ODMers would be in principle accepting this unpalatable fact, even in the interim.

The second risk stems from the fact that the individual, who occupies the sit of the

presidency, even if in interim, wields an inordinate amount of power. This authority can

be used with devastating effectiveness to consolidate power and obliterate any oppositionor challenge to self perpetuation. This was masterfully displayed by Daniel Moi, in the

constitutional ninety days; he was president, after Kenyattas demise in 1978. Moi was

able to contain a powerful and wealthy opposition and proceed to rule for more than twodecades, after witnessing the demise or conversion of all his opponents into his

supporters.

A third risk is based in the concern that the executive has undue influence in the matters

before the judiciary. Kenyan history is inundated with a prodigious number of issues thathave met their conclusion, without resolution, in the Kenyan judiciary, through executive

interference. Be it charges of assault by the first lady, to complex cases like Goldenberg.

Amos Wako has reigned supreme, over justice, with his nolle prosequi and I do not knowenough about the law to conclude that there any way to stop Mr. Wako from playing his

trump card again. This position is supported by the AGs lack of independence. He

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Mass action has been the predominant approach employed, and it has been fairlysuccessful, to this point, though at a very high cost. I view success as maintaining this

issue as a problem, and not allowing the illegitimate government to proceed with business

as usual. My assumption is that ODM's goal is to ensure that the countries systems do nottake on a post election stance, pending true resolution. The more Kenya looks like

business as usual, the more the electoral fraud will be an event in the past. But thisstrategy can only keep the issue as current in the eyes of the media, internationalcommunity, Kenyans and all other concerned parties. There are no power transitions that

have been made in the streets; the streets only apply pressure for other measures to affect

the actual goal. The mass action has taken the form of street protests, these have served

the purpose of wining the perception war, the government, through its police action, isnow widely perceived as a draconian and repressive regime. But who holds the ace in

street mass action? If the Kibaki regime were strategic thinkers as opposed to reactionary

buffoons, they would have stolen ODMs thunder by allowing the rallies at Uhuru Parkand asked ODM to guarantee that the rallies are peaceful. I would even go further and

have the police provide security for the rally. ODM would have had its national rallies, I

am sure masses would turn up, possibly the one million people Raila promised, therewould have been fiery speeches, then people would go home, and wait for ODMs next

move. If the rallies turned violent then ODM would be called to account as the violent

faction. Therefore, the illegitimate administration holds the ace and is able to change the

perception dynamics here. The fact that the government has not changed this dynamic hasmore to do with the absence intellect, than the absence of the opportunity. Like a brutish

ogre that swats a fly on its head with a club, and dies in the process, this government

shoots itself in the foot, along with innocent Kenyans.

A more direct approach of mass action would be non-violent civil disobedience, imagine

work go slow n critical industries, or all ODM members sit in the roads of all major

cities, on railways and obstruct ports. Police would be overrun with arrests and the cellswill not be able to hold the volumes. This approach allows ODM to hold the ace and raise

the ante at their time and place of their choosing.

Parliamentary pressure is the most viable approach in my opinion. Here ODM have a

both the ace and the constitutional platform to change the illegitimate government. ODMholds a majority in the house and both the Speaker and the Deputy Speaker position. The

most direct approach would be would be a vote of no confidence in the president,

followed by the necessary dissolution of parliament, then a new election. This wouldprove to Kenyans, more so than the world, that peaceful democratic processes can reflect

the 'voice of the people'. The challenge here is good old greed. As much as I love our

ODM Members of Parliament, I know they are not selfless leaders and Raila would behard pressed in appealing to the MPs to loose their seats to provide Raila with a chance to

recapture his. The financial cost and the real possibility of losing both your seat and Raila

not capturing the presidency are perceived to be too huge a risk to undertake. The MPswould rather fight for democracy riding on the backs ofmwanainchi as they do on all

other issues. It would be a pleasant surprise if this option is given much thought and

actually carried out. It would warm this skeptics heart.

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