The remark with which the Judiciary dismissed a presidential election petition was that the plaintiff — the whole hierarchy of the opposition Cord — had not adduced any evidence to show that the winners had committed any felony. That raises a fundamental question with regard to Raila Odinga’s renewed attack on the election machinery. What if — long after a court has dismissed a case — the loser stumbles upon new evidence which he thinks is watertight and should convince even the hardest-hearted bench? I ask because a time-bar is among the many “bars” that the penal code seems to erect against any attempt to resuscitate a case that a bona fide court has concluded. But how can that be, especially when it concerns the office that personifies all of a young nation’s aspirations for econo-political propriety, justice and democracy? How can we slam every judicial door on any future discovery that the government — nay, even the Moi and Kibaki ones — took office by manipulating the polls? Yet that, precisely, is why even Mr Odinga’s outburst is regrettable. In the context in which he was speaking, evidence such as he alleged against the Army properly belongs to the Judiciary. He just cannot win by appealing elsewhere. But if he thinks the first court was wrong and if he has overwhelming new evidence, the Judiciary remains the only legitimate recourse. In the court of all thinking members of the nation, he only ruins his own case by choosing to pursue it through political platforms, especially by throwing political stones at an institution like the military which, in relative terms, remains among the most respected national institutions. No, I do not claim that the Army is above censure. Although I have no evidence that military men and women were not involved in any election wrongdoing, I am not unmindful of the fact that certain officers have not answered certain very serious questions concerning certain activities perpetrated when terrorists raided Nairobi’s Westgate shopping centre recently. DELICATE CIRCUMSTANCES That is why Mr Odinga must learn to weigh his words, especially in a circumstance as delicate as this. For he has a legion of detractors. And, predictably, they have accused him of trying merely to make political capital by creating a mental link between the last polls and Westgate so as to work the public up against the military appointees of his election adversaries. Did the Army help UhuRuto to rig themselves into power? I say again that I don’t know. I say that, even if I had powerful new evidence to confirm it, I would not try to use it to rouse the rabble. There is nothing to gain by doing so. The rabble cannot help you. At best they will make ugly Gor Mahia noises and create security situations. But the cinch is that authorities will deal effectively with them — and at their own expense. No, since you have not created any revolutionary situation in Kenya, a court of law is, for the time being, the best place for any socially responsible-minded leader to go if he has any evidence against the government. Once again, I do not claim that our justice system is the most unimpeachable in the whole world. It isn’t. Indeed, I can report that I have come a very long way ever since I publicly hailed Willy Mutunga’s triumphal occupation of Daniel’s Judgment seat against his many opponents. The many dreadful things that have happened in our corridors of justice ever since President Mwai Kibaki inaugurated the new Constitution in 2010 make it very easy for me to understand why Mr Odinga might be loath to rush to the Judiciary even if he had earth-shaking new evidence against the election body. Nevertheless, Mr Odinga should treat with respect all the institutions which he himself hopes to deploy when he romps to State House.
Posted on: Sun, 26 Jan 2014 07:50:09 +0000
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