@TheStar

Raila: Work on new governance

11 months ago, 6 Dec 09:36

By: Daudi Mwenda

Legal challenges to the 2017 presidential election have come to an end. This is an irrefutable fact. Indeed the same Chief Justice (David Maraga) who nullified President Uhuru Kenyatta’s August 8 election presided over the official swearing-in ceremony last Tuesday. One is reminded of the legal maxim that all litigation must come to an end. In the instant case the end to litigation may not be as desired by the opposition coalition NASA. But is this not true of all litigation in our adversarial legal system? Did Uhuru not suffer the indignity of being sworn in by persons he described as “wakora?” Invariably there has to be a winner and a loser. In postmortem NASA needs to interrogate the advice of their legal team not to challenge the election as this turned out to be their Achilles heel. Opposition leader Raila Odinga has adopted a combative stance and has declared an intention to stage an alternative swearing-in ceremony on December 12. This may not be an idle boast and he may indeed follow up and be sworn in as the “People’s President”. It goes without saying that Raila is a very courageous individual and has every intention of taking the battle to Jubilee’s front yard. He is raw and sore about a fourth election defeat at the hands of people he believes have perfected the art of manipulating the electoral system. Swearing himself in will be a form of redemption. It may appease his followers and keep the dream of secession on track. This, I daresay, is reckless and not grounded in the law/Constitution.  As Kenya’s greatest and foremost defender of the Constitution, Raila ought to re-examine his current stance. In acting against the Constitution he would be playing into the very hands of those he has accused, and often correctly so, of acting unconstitutionally. Thus his credentials as defender of the Constitution could go up in smoke! Jubilee, who are still smarting from the historic and unprecedented election annulment, would love to trash those credentials. It would be unwise for Raila to hand Jubilee a rope to hang him. Why would he want to do that when he still has options? Swearing in should be a final “kamikaze” move when he is out of options. NASA leaders should look at the bigger picture and pursue constitutional change and rectification of the electoral system. Raila can harness and redirect his exceptional energies to this cause. Almost all Kenyans are in agreement that the 2010 Constitution is faulty. The IEBC’s current framework is an unmitigated disaster and is casually used and abused by those who have mastered election manipulation. NASA has the opportunity to bequeath Kenya with a new constitutional order, complete with an independent electoral commission. Why should the IEBC servers be based in France, a foreign country? NASA can revisit the Bomas draft constitution and either adopt it or create a hybrid. The current winner-take-all Constitution is polarising the country in dangerous fashion. Admittedly all this will take time ...
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@TheStar

Raila: Work on new governance

11 months ago, 6 Dec 09:36

By: Daudi Mwenda
Legal challenges to the 2017 presidential election have come to an end. This is an irrefutable fact. Indeed the same Chief Justice (David Maraga) who nullified President Uhuru Kenyatta’s August 8 election presided over the official swearing-in ceremony last Tuesday. One is reminded of the legal maxim that all litigation must come to an end. In the instant case the end to litigation may not be as desired by the opposition coalition NASA. But is this not true of all litigation in our adversarial legal system? Did Uhuru not suffer the indignity of being sworn in by persons he described as “wakora?” Invariably there has to be a winner and a loser. In postmortem NASA needs to interrogate the advice of their legal team not to challenge the election as this turned out to be their Achilles heel. Opposition leader Raila Odinga has adopted a combative stance and has declared an intention to stage an alternative swearing-in ceremony on December 12. This may not be an idle boast and he may indeed follow up and be sworn in as the “People’s President”. It goes without saying that Raila is a very courageous individual and has every intention of taking the battle to Jubilee’s front yard. He is raw and sore about a fourth election defeat at the hands of people he believes have perfected the art of manipulating the electoral system. Swearing himself in will be a form of redemption. It may appease his followers and keep the dream of secession on track. This, I daresay, is reckless and not grounded in the law/Constitution.  As Kenya’s greatest and foremost defender of the Constitution, Raila ought to re-examine his current stance. In acting against the Constitution he would be playing into the very hands of those he has accused, and often correctly so, of acting unconstitutionally. Thus his credentials as defender of the Constitution could go up in smoke! Jubilee, who are still smarting from the historic and unprecedented election annulment, would love to trash those credentials. It would be unwise for Raila to hand Jubilee a rope to hang him. Why would he want to do that when he still has options? Swearing in should be a final “kamikaze” move when he is out of options. NASA leaders should look at the bigger picture and pursue constitutional change and rectification of the electoral system. Raila can harness and redirect his exceptional energies to this cause. Almost all Kenyans are in agreement that the 2010 Constitution is faulty. The IEBC’s current framework is an unmitigated disaster and is casually used and abused by those who have mastered election manipulation. NASA has the opportunity to bequeath Kenya with a new constitutional order, complete with an independent electoral commission. Why should the IEBC servers be based in France, a foreign country? NASA can revisit the Bomas draft constitution and either adopt it or create a hybrid. The current winner-take-all Constitution is polarising the country in dangerous fashion. Admittedly all this will take time ...
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