Saturday, 4 May 2013

Judging Chief Justice Willy Mutunga in Context

Appreciating a Comrade and a Mentor
By Onyango Oloo via

It has been exactly one week since that stunning 6-0 verdict by the Supreme Court sealed the ascendancy of Uhuru Kenya to the apex of the Kenyan neo-colonial state.
At the time that the five minute shocker was beamed to millions of people across East and Central Africa and streamed online  to tens of thousands more around the world I was among the hundreds of people huddled over and clutching our various gadgets-lap tops, digital cameras, recorders -in the adjacent Media Centre.  I had been reflecting on the ramifications of this ruling all day, ever since I had arrived at the precincts opposite the Reinsurance Plaza at around 8:30 am.  Immediately the green robed lords and her ladyship made a hasty exit from the court after delivering that collective slap on the Kenyan people, I started pounding away at my keyboard giving birth and delivering my upcoming blog almost instantaneously making some cyberskeptics, questioning the alacrity with which I churned  out the essay, whether I had the digital on tap all along.  Nothing could have prepared me and most Kenyans in my progressive circles to prepare for that unlikely denouement to what was no doubt a gripping post-election judicial soap opera.
Even now most of patriotic and democratic Kenya is still in denial not unlike those unfortunate road accident casualties who keep congratulate themselves for surviving the grisly head on crash-not realizing that the head they are speaking from was decapitated from their torsos and that they are muttering their dying words.
Inspired by that national sense of betrayal and the subsequent, persistent denial of the reality and ramifications of that Supreme Court decision, there is a crescendo of rumours and speculations imbued with a mixture of anger, fear, hope and anguish.
In the classic Kenyan tradition, every urban legend, trope, tall tale and rumour is by definition always “CONFIRMED” and “VERIFIED” by allegedly IMPECCABLE sources- whether these are  touted to be the Supreme Court Justices themselves,  State House insiders, CORD strategists or even  Jubilee moles.
Here is a sample of the sizzling stories doing the rounds in Nairobi and elsewhere in this conflicted and tortured republic:
1.       “The decision was scripted by the NSIS and thrust to the Chief Justice to read at gun point”;
2.       “Kibaki had already handed power to the military top brass a week earlier and the generals had vowed never to serve under  Raila Odinga who had once attempted a coup de tat”;
3.       “Each of the Supreme Court judges was given one billion shillings to rule in Uhuru’s favour.  In fact, Justice Wanjala arrived at his residence around 8:30-9:00 pm to find four men waiting for him in his living room. One of them  opened a  huge suitcase stuffed with crisp 1,000 shillings and tersely  instructed him to do what he knew was right for our beloved motherland”;
4.       “Dr. Willy Mutunga called the Prime Minister and spoke to him for over 40 minutes explaining to the CORD flag bearer  how the forces of impunity had held him hostage; Raila understood the dilemma his friend and comrade was grappling with”;
5.       “The judges were split 3-3 (with Willy, Smokin’ and Ibrahim on one side). They opted to project  a united front as the Supreme Court, hence the 6-0 unanimous announcement”;
6.       “Obama, Cameron and Merkel had themselves urged Kenyan civil society juggernauts like Gladwell  Otieno, Maina Kiai, Muthoni Wanyeki and John Githongo not to worry about Uhuru becoming President because within two months the ICC duo would be securely locked up at the Hague”;
7.       Etc. etc. etc
Is there ANY truth to the above rumours?
SOME truth?
Completely baseless fabrications?
Who knows?
Kenya is a weird and surreal territory. Some of the giddiest and wildest urban legends often turn out to have more than a kernel of truth.
On the other hand, perhaps the TRUTH is in fact, STRANGER THAN FICTION. Perhaps we Kenyans should treat as LITERAL, this verbatim rendition from the Supreme Court:

1. After extensive deliberations, we are happy to announce the Supreme Court has reached a unanimous decision on all the four issues that fell for determination in presidential election Petition No. 3, 4 and 5 as consolidated.
2. The following is the unanimous decision of the court:
(i) As to whether the presidential election held on March 4th 2013, was conducted in a free, fair, transparent and credible manner, in compliance with the provisions of the Constitution and all relevant
provisions of the law; it is the decision of the court that the said elections were indeed conducted in compliance with the Constitution and the law.
(ii) As to whether the 3rd and 4th Respondents were validly elected and declared as President elect and Deputy President elect of the Republic of Kenya respectively, by the Second Respondent in the presidential elections held on the 4th March 2013; it is the decision of the court that the 3rd and 4th respondents were validly elected.
(iii) As to whether the rejected votes ought to have been included in determining the final tally of votes in favour of each of the Presidential candidate by the 2nd Respondent; it is the decision of the court that such rejected votes ought not to have been included in calculating the final tallies in favour of each presidential candidate.
(iv) As to what consequential declarations, orders and reliefs, that this honorable court ought to grant based on the above determinations, the following are the orders of the Court:
a. Petition No.5 of the consolidated petitions is hereby dismissed.
b. Petition No. 4 of the consolidated petitions is hereby dismissed.
c. As to Petition No. 3 of the consolidated petitions, the prayer by the Petitioners seeking a declaration of recomputation of percentages by the 2nd Respondent is declined as the court as no jurisdiction.
d. Regarding orders as to costs, the Court orders that each party bears his/her/it’s own costs.
3. The detailed judgement containing the reasons for decision of the Court will be issued within two weeks from today.
To tens of millions of Kenyans (including many who DID NOT VOTE AT ALL) the above words still ring hollow and contrived.
That is why half of the country is shuffling its feet, shrugging its collective shoulders and sighing heavily, muttering:
“OK, let’s wait for that detailed written ruling that they promised to furnish us with in two weeks.”
To give an inkling of what most progressive and democratic minded Kenyans are thinking at the moment, contemplate this  Open Letter to Chief Justice Dr. Willy Mutunga, penned by Gideon Wafula and carried in the April 4,2013 issue of the online Pambazuka  and also social justice newsletter which reaches millions around the world:

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