To win by (il)legal means

2017-09-10 06:01
Kenya’s President Uhuru Kenyatta speaks to his supporters in Nairobi. PHOTO: ap photo / ben curtis

Kenya’s President Uhuru Kenyatta speaks to his supporters in Nairobi. PHOTO: ap photo / ben curtis

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Mr President,

I can imagine your disappointment last week after the ruling by the Supreme Court declaring your election null and void.

Four out of six justices nullified an election in which 10.6 million people, or 54% of the population, voted for you. But all hope is not lost.

I was moved to write after watching your first press conference, in which you lamented the “unfair” outcome of the ruling, but indicated that you were constrained to abide by the decision of the court.

I wondered about the discussions you must have had with your family and close aides, especially the justice minister, before you faced the press that day.

When Kenyatta was Kenyatta, it was inconceivable that any man born of a woman would nullify an election in which 10.6 million Kenyans had elected him.

You will recall, Mr President, that, until he died of a heart attack 39 years ago, your father, Jomo Kenyatta, was the sun in the Harambee firmament. The grand old man ruled Kenya for 15 years with an iron fist and only permitted opposition to exist, very briefly, as decoration.

It is not the fault of the court, you see. Your main rival and fifth-time contender for the presidency, Raila Odinga, knows that Kenyatta senior would not have accepted from his father, Jaramogi Oginga Odinga, what you have had to endure at his hands.

Who knows, you may have even been in the same party with Odinga today had certain events not taken place in the mid-1960s that eventually led to the expulsion of Odinga senior from your father’s party. In hindsight, you probably thought that your father’s decision to expel Odinga – then his deputy – from the party in 1969 was harsh. Perhaps now you will begin to understand why your father, a revolutionary, did what he did. It was not just about the overstated differences between the Luo and the Kikuyu, or any economic or ideological differences. The Odinga clan cannot bear being governed.

It has been said that you are bitter about the court ruling. You have also been quoted as describing the chief justice and other justices of the Supreme Court as “wakora” (crooks and scoundrels), vowing that you will “fix” the court once the election is over.

That statement has led to unflattering interpretations, including a rebuke from the Law Society of Kenya. It did not help that, soon after your statement, the dormitory where the daughter of Chief Justice David Maraga was staying at Moi Girls High School burnt down. She escaped by sheer instinct, having inexplicably decided to stay elsewhere that day.

Mr President, I imagine that, following the court ruling, the true Kenyatta blood in you might be stirred up. But hold your peace. You do not have to force your opponents to walk the plank. In spite of the setback, you will win again on October 17. How? That is what this private letter is about. Your party, Jubilee, has provided free maternal care; cleaned up the slums; digitised public records, and opened them up to public access and scrutiny; added more than 325 megawatts of power to the national grid in two years; and constructed a standard gauge railway from Mombasa to Nairobi.

Of course, the opposition National Super Alliance has been snapping at your heels for allegedly overborrowing and failing to transparently account for a 280 billion-Kenyan shilling (R35 billion) Eurobond loan – raising the spectre that this could be another Anglo-Leasing scandal, one of the worst in Kenya’s history.

Surely you can understand the mentality of the opposition, Mr President. These people are poor upstairs. They are posing as friends of the poor for votes, while trying to frame you as the out-of-touch heir of a rich father, whose mother, Ngina, was also one of Kenya’s richest women. It is pure jealousy, Mr President.

As for the election on October 17, I repeat that there is no reason you should not win again. And the good news is that you can even win without contesting the election.

Do not be surprised, Mr President. If you lost by contesting, why do you suppose you cannot win without contesting? I am not speaking of a political contest, but a legal contest – taking the fight to the opponent on the same turf where you lost: the court.

I am aware of the limitations of Kenya’s Constitution – that election petitions have to be dispensed with within 14 days at the Supreme Court, and that pre-election matters are decided in Kenya before elections.

I am also aware that you have agreed to abide by the court’s decision. Yet, in what might be your last chance to clinch victory, you must act before the court publishes its full judgment; you must aim to sterilise the judgment and arrest it before it becomes public. If you can do that, Justice Maraga and his brother justices will have no choice but to review the judgment, eat humble pie and award your hard-earned victory.

All you need, Mr President, are the services of a few bright senior advocates of Nigeria. As we have the same common-law heritage, it should not be difficult for them to adapt. Our politicians line them up all the time for all sorts of cases. And if you excuse my quoting US President Donald Trump here, they know how to win.

If I may hint at it, Mr President, for a matter as important as yours, our senior advocates will bring a forensic focus to bear on the Kenyan Constitution that will reveal the hidden technicalities. Their lordships will be surprised to find there is quite a handful, enough at least, to deliver a pre-emptive victory before October 17.

By the time our senior advocates have finished with the legal technicalities and prayers for adjournment upon adjournment, Mr President would have nearly completed his four-year second term; and who knows where the 72-year-old Odinga will be by then?

Mr President does not have to worry about what Kenyans may say about the novelty of seeking legal help abroad. Even if some Kenyans are unhappy about it, foreign observers who would be pleased with this saving grace know that, in a globalised world, help is where you find it. What is new? Is the jury not out on whether the Russians helped Trump win?

I must resist the temptation to say more, publicly. Mr President should rest assured that, as he weighs up this exceptional approach, his father’s benign spirit is smiling over him, urging him not to throw away the ancient victory over the archrivals.

Delay may be dangerous.

Ishiekwene is the managing director/editor-in-chief of The Interview magazine and a board member of the Paris-based Global Editors Network

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