Options for a solution to the post-election crisis

Kenyans Make me proud and I know we can do it. Haraaaaaaambeeeee! Tusaidiane.

Here is Mr Ngugi an assistant professor of Law, in collaboration with six other scholars working in the United States doing what great people do.

Before you read Ngugi's commentary, just step into the mind of FRED MUDHAI's, " Don’t kill your brothers and sisters for the sake of a political elite."

To ensure the road to peace is not full of pot holes with negative thought of what took place in Eldoret, Sammy Kitula paints a very colorful image of our ambassadors of peace. Listen to this paragraph:

"Sitting at the heart of the Great Rift Valley, just a few kilometres from Eldoret town and considered the nerve of athletics is the Kipchoge Keino High Performance Training Camp. It is located on a farm owned by the legendary Kenyan track star and is designated as an approved high altitude training facility by the International Olympic Committee (IOC)."

I read that paragraph three times and just wondered if I can re-programme my thoughts and all those who died in the church. They must have names and we cannot afford to forget them. Anyone with names of the children, mothers, fathers, grand mothers, uncles or who they were. I guess right now it is not a priority.

I am very bitter. I too feel a bit ashamed, (by any means neccesary can wait) but deep inside I recent dictatorships of whatever color or smell. Deep inside I cannot look at Kibaki and not feel ashamed. How could he.? It was like an abortion. The whole world was proud of us, the observers had already finnished their reports and their conclusion was a clear, "hey world, here is AFRICA and the Kenyans are leading." That was not meant to be.

Did you read what Moooooody Awori was saying after being fired by people from his home. He should be ashamed, and Kibaki's letter without mentioning ODM or Raila. Is he drunk or did someone else write the letter in lala land. Concerned parties are all Kenyans and are you deeply disturbed by the senseless rigging.

( Daily Nation)
COMMENTARY
Options for a solution to the post-election crisis
Story by JOEL M. NGUGI
Publication Date: 1/4/2008

KENYA IS IN DEEP CRISIS. IT is sitting on the precipice of a fully-fledged ethnic-based violent rupture. As death, mayhem, and possible genocide unravel, Kenyan politicians and leaders seem dangerously unwilling or unable to show genuine and effective leadership in ending the ethnic strife.

In refusing to seek an immediate end to the ethnic strife, perhaps each side hopes to somehow gain the upper hand in the resolution of the crisis. This is both dangerous and unacceptable.

The first step must be to end the violence. Neither side should equivocate on this. Neither side should take any other steps which might escalate the mounting tension.

Even as the Government attempts to control the violence, it must be sensitive to the underlying cause, and that avoids giving credence to the notion that the Kibaki regime is merely trying to perpetuate itself in power.

The Government must understand that there is genuine anger at the real and perceived irregularities in the elections, and understand that half the country see these irregularities as Kibaki’s illegitimate attempt to remain in power.
On the other hand, ODM leaders and supporters must understand that the first task is not to determine the winner of the elections.

The first task is to end the madness of violence that has engulfed us. They must desist from making any further comments which might inflame their supporters. Averting genocide is more urgent than determining the election winner.

THE SECOND STEP MUST BE TO FIND a political solution to the current impasse on the outcome of the presidential elections. There is no doubt that many Kenyans consider the outcome as announced by the ECK to be rigged.
There are many valid questions about voter turnout in some PNU and ODM strongholds as the Maragua and Rarieda cases indicate. The first step to finding a political solution must be for Kibaki and Raila to meet on mutually agreed terms. Each must desist from making unreasonable demands for such a meeting.

For such a meeting to be fruitful, the Kibaki government must soften its stance that the only solution to the crisis is a “legal” one pursued through the judicial process. The Government must immediately stop its rhetoric that no “mediation” is required to avert a crisis.

On the other hand, Raila must withdraw his demand that Kibaki steps down before he agrees to a meeting. He must understand that by meeting Kibaki, he would not be legitimising his presidency; he would be exercising responsible leadership.

A meeting between Raila and Kibaki would serve both performative symbolic and pragmatic functions. Symbolically, such a meeting sends a message to their supporters that it is time for peace, while giving hope to a mutually agreeable solution. Pragmatically, it will give a chance to both leaders and their advisers to start considering solutions to the crisis.

One such solution is to agree to a re-tallying of all the presidential votes. For this to ultimately work, both sides should agree on the rules of the game first.
FOR EXAMPLE, BOTH SIDES SHOULD agree on what to do where there is evidence of tampering with Form 16(A) or when to pursue further investigations at the constituency level before utilising the numbers provided to the ECK.

The re-tallying should be done by a credible, independent and international body. Such a body will eliminate any claims that the final outcome was determined by the respective party’s self-interest.

Another possible solution, which both sides must seriously consider in light of the ethnic strife engulfing the country, is another presidential election.
If this solution is to work, both parties must agree on terms for a “transitional government.” If this option is elected, for example, a transitional government does not necessarily have to be a short-term power-sharing arrangement.

Both parties could agree to legally limit the kinds of powers the Executive would exercise during the transitional period until another election is carried out.
A third political solution could be to combine a softer version of the “transitional government” solution with a legal solution. The parties could agree that Kibaki continues presiding over a transitional government until a legal solution is pursued and finalised.

However, rather than utilise the deeply flawed, highly technical election petition process, the parties could agree on a new, independent election tribunal that could consider all election complaints and determine their validity.

One could think of creative ways to make such a tribunal “legal” within our legal system — for example by asking the Chief Justice to constitute it, with input from both sides, from among mutually agreeable High Court judges so that it actually sits as an election court with an expedited schedule — and operating under new rules of procedure agreed upon by both parties, but formally promulgated by the Chief Justice.

Finally, both parties could agree on a longer-term power-sharing formula where both the ODM and PNU agree to form a government until the next presidential elections are held.

This could have the advantage of giving the country a chance to heal before the next polls. If this course of action is chosen, it might also include an agreement for legal, political, and constitutional reforms that must be undertaken before the next presidential elections, and the time-table for such reforms.

As this crisis has shown, we badly need electoral and constitutional reforms — and these reforms could be a sound basis for the healing that the country badly needs.

IF ANY OF THESE POLITICAL SOLUTIONS is chosen, the parties must agree on the effect of the solution elected on existing legal mechanisms for pursuing the rights of the parties. For example, the parties must agree if a particular solution pre-empts and precludes the legal solutions envisaged in the Constitution and statutes.

These political solutions require bold and responsible leadership by both Kibaki and Raila, and a measure of humility by their supporters.
On Kibaki’s side, it will require acceptance of international mediation as the basis for establishing consensus. Since the Government prefers “dialogue”, this will be a significant concession.

On Raila’s side, it will require that he takes aggressive action to calm his supporters and that he seeks to legitimise his claim to the presidency through one of the measures suggested above.

Mr Ngugi is an assistant professor of Law, University of Washington, Seattle. This article was written in collaboration with six other scholars working in the United States.