Sunday, 12 May 2013


On Monday this week, the Star published an article by columnist Ngunjiri Wambugu, the latest in a series of columns that have somewhat mystified his readers, and which, with the best will in the world, are difficult to explain away by his justification, expressed to some, that he uses his column to stay ahead of unfolding political events.
In Monday’s column, Ngunjiri spoke disparagingly of the Orange Democratic Movement (ODM – now part of the Cord alliance) in relation to both the 2007 and 2013 general elections.
Some of Ngunjiri’s decidedly prejudicial remarks are rather subtle and rely on careful lexical choices to create a certain impression. But there is a clear underlying message – that ODM concocted the notion that Raila Odinga won the 2007 presidential election, that the party used this concocted “narrative” to keep a “stranglehold” on its supporters five years later, and that the party is now rebuilding this “narrative” with a view to influencing the 2017 elections.
Ngunjiri says the “narrative … developed and cultivated by ODM” was “used [by ODM politicians] between 2007 and 2013” to sustain “ODM’s hold in Nyanza, Coast, Western and Rift Valley, by assuring supporters that their support led to ‘a win’ that ‘those people’ stole”.
According to Ngunjiri, ODM is now “recreating the ODM post-2007 elections narrative” in a manner characterised by “unjustified accusations” that are “extremely dangerous to Kenya’s national interest”.
I would like to jog Ngunjiri’s memory. When South African former judge Justice Johann Kriegler came to Kenya in 2008, it was to head a commission of six experts – his five colleagues were Kenyans – to investigate the 2007 polls.
The team’s tasks included identifying weaknesses in the constitutional and legal framework; examining the structure and composition of the Electoral Commission of Kenya (ECK); looking at the roles played by political parties, civil society, the media and observers; assessing the efficacy of the entire process from beginning to end – with special reference to the integrity of the presidential election results, and finally recommending reforms.
Kriegler and his team wanted one-on-one evidence and they embarked on an intensive exercise interviewing people all over the country. The project cost some shs.50 million and the commission published its findings late in 2008.
Kriegler’s report was forthright on the post-election violence, saying that, in contrast to the pre-election violence, which occurred mainly between the supporters of opposing candidates, the post-election violence “had a distinct ethnic dimension”. The report went on to detail deadly ethnic hostilities, particularly between Kikuyus and Kalenjins in the Rift Valley.
It is not my intention to rehash all that here. That is now the task of the ICC. As far as the presidential election was concerned, Kriegler’s report found, in short, that there were too many electoral malpractices throughout the process to determine who had actually won.
Indeed, the difficulty of knowing for sure who had won was the reason a Grand Coalition Government was subsequently formed. Mwai Kibaki did not become president in 2008 because he won the 2007 presidential election.
He became president and Raila Odinga became prime minister as a result of the National Accord 2008, evolved and signed under the guidance of Kofi Annan and his Panel of Eminent African Personalities.
The Accord was agreed and drawn up on the basis that it was not possible to determine a clear presidential winner from the evidence available.
This is not a “narrative” concocted by ODM. The Accord decision was a compromise solution, largely in response to the post-election violence that had left 1,500 people dead and up to 250,000 displaced from their homes. Things were on a knife-edge and a calming solution was badly needed.
With hindsight, most people of whatever political affiliation would agree that the Grand Coalition offered a way out at the time. Coalition governments are by nature highly imperfect and very difficult to manage but, at the time, anything that ensured an end to violence was to be welcomed – even if, truth be told, what transpired might have perpetuated a gross injustice.
For not everyone agreed that a clear winner was not obvious. And this view was not confined to ODM members.
 IRI exit poll told a different story
In August 2008, the respected US International Republican Institute published its exit poll of 2007 presidential election voters. Long rumoured to give Odinga a significant lead over Kibaki, the poll had been kept under wraps for more than six months – some said partly for fear of reigniting tensions in the country.
Finally, after what it said was “extensive analysis” by three independent groups, the IRI declared its “confidence in the validity of the audited Kenya election day poll data file and its results”.
The exit poll, conducted with voters as they left polling stations, concluded that Odinga had defeated Kibaki in the presidential election by almost six percentage points.
The authors of the poll, Professor Clark C Gibson, chair of the department of political science at the University of California, San Diego, and James D Long, then a PhD candidate at the same school (and now a Harvard don) came to Nairobi to make their submissions to the Kriegler Commission.
They emphasised that the exit poll had been done as pure academic research and that, although it was a joint project of the University of California San Diego, USAid, IRI and Strategic Research, it had not been a political commission.
Gibson told Kriegler that the authors had independently designed and conducted the poll as a scientific and academic exercise and had generated their own data, relying on no one else’s information or views.
“We didn’t look at any media, or listen to any anecdotes,” Gibson said. “We don’t reconstitute the vote. We only use the evidence we obtain from interviewing voters.”
Exit polls are recognised worldwide as valid tools based on scientific principles. They are not based on guesswork, on compiling some votes and not others, on timing of voting, on comparisons with previous elections or on any hearsay reports or anecdotes.
Their validity and importance hinges on the fact that, unlike pre-election polls, which rely on statements of intention that might or might not eventually be translated into action, exit polls rely on statements of what people actually did just a few minutes previously – that is, who they just voted for.
The IRI exit poll posed 30 questions regarding demographics, the process and timing of voting, the performance of local, parliamentary and central government, attitudes about policies, issues and ethnicity, and choices of councillor, MP and president.
The poll result gave Mr Odinga 46.07 per cent of the vote, Mr Kibaki 40.17, and third-placed candidate Kalonzo Musyoka 10.22 per cent. The margin of error was 1.32 per cent.
Of particular interest were the differences between the exit poll and the ECK’s final figures. The poll showed the ECK results produced a reduced tally of votes for Odinga nationally and an inflated tally for Kibaki.
The differences showed Odinga’s votes across the country were depressed by an average 8.25 per cent, while Kibaki’s votes across the country were inflated by an average 10.4 per cent.
Odinga easily gained 25 per cent of the vote in six provinces (fulfilling the requirement that a successful candidate must gain 25 per cent in at least five of the eight regions at the time) while Kibaki did so clearly in only four.
Overall, the poll showed a difference in favour of Odinga of 413,794 votes, which would have given him a lead of 188,620 votes over Kibaki, who had been declared the winner by 225,174 votes.
Gibson and Long explained in detail how they had rigorously cross-checked their results. It was a remarkably open study. Its critics could say all sorts of things, declared Gibson, but “Assertions do not carry the day in empirical [verifiable by experiment or observation] work.”
Most importantly, we can say – and Ngunjiri should take note – that this “empirical” study and its results were NOT a “narrative” concocted by ODM.
Before his report was published, Kriegler told Odinga privately that he did not see his mission as telling Kenyans who had won, since “even a fool in this country knows what happened”.
He said the report would thus be somewhat vague about the outcome of the elections, and rather longer on recommendations of how to avoid a repeat scenario in future. And that is what transpired.
Papering over the cracks
Ngunjiri now seems anxious to paper over the cracks, to rewrite history and to create a certain kind of impression. In doing so, he uses a litany of emotive words – demonising, thieves, angry, stranglehold, siege mentality, setting the stage for violence, doing whatever is necessary – to fan the idea that some kind of political desperation stalks this land and that this must be stopped, lest we repeat the events of history.
These remarks are directed at Cord, particularly in Monday’s article, yet such a portrayal is not justified by any actions on the part of Cord or its adherents, nor by any evidence proffered by Ngunjiri.
Ngunjiri in fact seems to be subconsciously trying to prove something else. From his writing, this ‘something’ seems to hinge on the fact that he is a Kikuyu.
A strong Kibaki supporter in 2007, Ngunjiri says in private conversation that he saw the light soon thereafter and realised that change would only come to Kenya if Kikuyus mended their ways and stopped thinking of themselves as rulers by divine right. He formed an NGO called Kikuyus For Change (now Change Associates).
Many of Ngunjiri’s articles mention his Kikuyu background – “As a Kikuyu … (March 25), “… they [Odinga’s campaign team, of which Ngunjiri was a part] must be careful about taking my ideas because I am a Kikuyu” and “one wondered why a Kikuyu was chairing a meeting to plan a tour to Western” (April 29) and so on. He appears very conscious of his Kikuyu-ness.
To give him his due, Ngunjiri did take up a role in the 2013 Odinga presidential campaign team that was unusual. He was a Kikuyu in the position of political director in a party – subsequently part of a coalition – that was largely non-Kikuyu. In our ethnicity-ridden society, this was significant.
But how significant? Was it, for example, more significant than Onyango Oloo’s prominent position in the predominantly Kikuyu TNA, while he himself is a Luo? Oloo must have faced similar prejudices there. The difference is that we have not been reading articles from Oloo that frequently refer to his ethnicity.
All of us who are ‘different’ face prejudice. I am myself frequently derided on blogs written by people opposed to Raila Odinga as (a) white, (b) a woman and (c) a grandmother.
We have to accept this as the kind of cheap shots desperate people launch – and we have to get over it. But it seems that Ngunjiri’s need to show he is, in his view, de-ethnicised, contrarily leads to a frequent need to introduce the ethnic angle. In Monday’s article, he did this again by referring – somewhat curiously – to the ‘East-West’ Kenya divide.
It is not that we are unaware of ethnic polarisation. But this doesn’t need to be the highlight of every tale. There are many political and social factors that are equally intransigent obstacles to reform in Kenya.
After the announcement of the 2013 presidential election petition ruling by the Supreme Court, Ngunjiri wrote an article that shocked a lot of people (‘Now ICC must leave Uhuru Kenyatta, William Ruto alone’, Star, April 1, 2013). It shocked because Ngunjiri had previously supported the notion of the ICC trials and was now apparently doing a U-turn.
His premise appeared to be that, if six million people voted for Kenyatta in the presidential election, this apparently meant that they and the remaining 35 million Kenyans who did not vote for Kenyatta now opposed Kenyatta’s trial by the ICC.
This is nothing if not flawed and untenable ‘logic’ – but that is Ngunjiri’s prerogative, if that is what he thinks. In prosecuting his case, however, and in answering the storm of criticism that greeted this article, Ngunjiri made in his article the following week some terribly unfortunate, dismissive remarks about victims of the 2007-8 violence.
In defence of his position that Kenya no longer needs the ICC to be involved in the cases concerning the alleged perpetrators of the violence, Ngunjiri wrote: “What we need is for the new government to officially recognise all those who were affected, especially outside the Kikuyu and Kalenjin communities” and to “conclude the compensation and resettlement of all IDPs”.
So, the government should “officially recognise” those affected? What exactly does this mean, and how will ‘recognition’ help those victims? What form will this ‘recognition’ take?
Is it financial compensation? I don’t want to make this personal, but Ngunjiri is the father of three daughters. How much financial compensation would be enough for him if his daughters had been among those raped and tortured and maimed or killed?
It seems Ngunjiri is criticising, indirectly, ODM, Cord, Raila Odinga and everyone else who expects justice, in a manner that says, ‘Time to forget about all that now – give victims some compensation and let’s move on’.
I’m afraid it is not so simple. Just as there is no statute of limitations on crimes against humanity (viz Nazi 1939-45 war criminals, old men in their 80s and 90s, being brought to justice in recent years), so there is no statute of limitations on people’s recurring terror and grief in the face of suffering that surpasses all other.
Any notion of simply paying financial compensation to victims is an insult to their humanity. Even the disruption and psychological torture of displacement alone is underestimated.
Many of those displaced have been unable to return to their homes up to now, despite the new solidarity much-vaunted by TNA-URP (solidarity at the top, maybe).
If our Truth, Justice and Reconciliation Commission were in any way worth its name, and if there were some indication of admitted responsibility and a chance for emotional and psychological reconciliation and healing, it might be different. But as the TJRC prepares to release its report, we would be ill-advised to hold our breath.
So it seems it is: ‘Victims, please move on, so that we can paper over the cracks and pretend everything is now OK’ – coupled with condemnation for Cord, Raila and ODM for not adopting this stance. Somehow, I have a feeling this is not going to work for a lot of people.
 The Odinga presidential election campaign
Ngunjiri has several times severely criticised the Odinga presidential campaign. On Monday, he asked, “How well did we motivate our voters to register; how well organised was our ‘get out the vote’ machinery; how efficient was our agent system in protecting the ballot at all levels; and how effective were we in ensuring our competitors did not inflate their votes?”
Well, for a start, Ngunjiri is probably in the best position to answer the first two of those four questions, since, as campaign secretariat political director, he was in charge of ODM’s push to get people to register and later to come out and vote.
To that precise end, he conceived and promoted a project within the ODM presidential campaign called ‘Mashinani’ [Grassroots], which had ongoing weekly events in all 47 counties. If he sees his efforts were not effective, can he explain why not?
The second two questions come as a surprise from someone like Ngunjiri. It is not the responsibility of any party’s agents to “protect the ballot at all levels” or to “ensure competitors do not inflate their votes”. These tasks are the responsibility of the Independent Electoral and Boundaries Commission – otherwise, what are they there for?
Party agents attend as witnesses. They have no power to “protect the ballot at all levels”. Indeed, at the national tallying centre, Cord agents were frog-marched out when they protested at the shenanigans going on. How were they supposed to “protect the ballot”? Ngunjiri’s congratulations to Jubilee for doing “better” in this regard is like congratulating a hunter for shooting a lion chained in captivity.
Judgement by the Supreme Court
Ngunjiri really goes a step too far (what on earth was he thinking?) when he writes that, following the 2007 election, “some could argue that the party [ODM] literally hounded former ECK boss Samuel Kivuitu to his death”. As far as I am aware, Kivuitu died earlier this year, five years later, after a long battle with cancer.
Ngunjiri uses this entirely fictitious and very bad-taste suggestion (heard nowhere else at all) to try and draw a parallel with ODM-Cord-Odinga’s criticism of chief justice Willy Mutunga for the latter’s questionable handling of this year’s presidential election petition. (Lord help us all if Mutunga also gets cancer in five years’ time.)
Let’s just look at a pledge made by Mutunga after he became chief justice. He assured us that never again would any case be dismissed on grounds of a ‘technicality’.
Famous ‘technicality’ cases of the past have included Kenneth Matiba’s 1993 petition against Daniel arap Moi’s election as president. The petition was dismissed on grounds that Matiba did not sign the relevant papers. Matiba was disabled by a stroke suffered during political detention without trial, and his wife had signed for him.
Kibaki launched a petition against Moi’s election in 1997 but this was similarly dismissed on a technicality – that he had not served Moi personally with the papers. How does anyone serve court papers on a sitting president surrounded by layers of armed security?
So Mutunga gave a solemn undertaking that, under his watch, such things would never happen. But what transpired in the just-concluded election petition was precisely comparable.
After the election results were declared on March 9, Cord wished to petition but first had to access the evidence. Most of this evidence was with the IEBC, which, as a defendant, was not about to hand it over willingly. Cord had to get a court order compelling the IEBC to make all election documentation available.
By the time this order was given, and with the petition having by law to be lodged within one week of the election result announcement, the Cord legal team had precious little time to prepare the petition. It had to rush and get hold of photocopying machines and stationery supplies and take them to Bomas, where a team of young people spent a couple of days and nights photocopying tens of thousands of documents. It was a mammoth task.
Next, a team of lawyers had to analyse all those documents. By now, they had about two days at their disposal. It was no longer a mammoth task. It was an impossible task, in terms of time. They did the best job they could.
Once the IEBC had filed its defence, Cord was able to respond. Cord lawyers analysed the defence and during the period more evidence flowed in, which resulted in an additional 800-page document from Cord. This was filed on a Saturday, prior to a hearing scheduled for the following Wednesday.
The Supreme Court had Sunday (if they could be bothered), Monday and Tuesday to go through this evidence. On Tuesday they appeared and said the new information was too much, there was not enough time to go through it, they didn’t know how to deal with it. But in a court of law, verbal evidence can be taken, even from witnesses who are newly appearing during a hearing. Judges are obliged to record this evidence themselves.
What is more, the Supreme Court judges only needed to look at these 800 pages of evidence and prepare themselves – the evidence would be expounded verbally in detail in court.
To Cord’s consternation, the Supreme Court hastily ruled that there was no time for them to consider this evidence, which was unceremoniously thrown out.
Ngunjiri, instead of writing so casually that “There is also the issue of whether Cord can even justifiably make the claim that the 2013 elections were stolen”, might do well to explain how this Supreme Court procedure was not a travesty of justice. Cord was not even permitted to present its evidence to ‘justify’ its claim of loss.
And that is not to mention how the Supreme Court ruled that the attorney-general, Githu Muigai, chief adviser to the government, could be present as amicus curiae – a friend of the court.
And Muigai turned out to be a good friend, apparently. He blithely quoted discredited authorities from Nigeria and Uganda before turning to the Seychelles, from where he relied on a case (concerning whether spoilt ballots should be counted in the overall total) where one judge had dissented from all the others – and it was this lone dissenter’s judgement that Muigai quoted, rather than the verdict carried by the majority! This must be a complete joke in legal circles.
Meanwhile, the Law Society of Kenya, of which chief justice Mutunga himself was once chairman, also asked to be admitted as amicus curiae, and their application was rejected on grounds that the society had previously voiced an opinion on the ICC cases facing Kenyatta and his deputy president.
So does this mean that, if the Law Society ever says anything about any case, it can no longer be considered fit to appear in court? Commenting on cases is what the Law Society does. This rejection of their request to appear in the petition case must also be a complete joke in legal circles.
And thirdly, Yash Pal Ghai, a Kenyan academic in constitutional matters, an international professor of law with experience in countless countries, a former special representative of the UN secretary-general, and the author of the Bomas Draft of the new Kenyan Constitution, was also disallowed from standing as amicus curiae because he was said to “have issues” with the chairman of the IEBC, who had been a member of Ghai’s Bomas commission, and Ghai would therefore be “hostile”.
Ghai defended himself and said his contribution would help the court, but he was still thrown out. Only the attorney-general, friend of the establishment, adviser to the government (and the government was not in court to require his advice) was allowed to stay. How was it possible that he alone could be ‘neutral’? Maybe you can tell us that, Ngunjiri.
Another exit poll
According to Ngunjiri’s Monday article, where he was quoting another columnist in another newspaper, “Raila knows he lost this last general election, in his heart of hearts”.
I can assure you that Raila knows no such thing. And his belief to the contrary has been vindicated this week by another exit poll by two political scientists from Harvard University.
This exit poll showed that, in the recent presidential election, Odinga and Kenyatta emerged neck-and-neck at about 41 per cent each. Neither achieved the 50-per-cent-plus-one necessary to clinch the presidency.
One of the Harvard dons said that “people broke the law when they counted votes”. If things had been done honestly, there should have been a run-off between the two leading presidential contenders. Instead, it was contrived that Kenyatta would win – and the rest is history, as they say.
I’m afraid my friend Ngunjiri’s assertion that “our ballot results were only but a confirmation of how well each coalition had prosecuted the entire campaign process” appears naively wide of the mark, and he is doing himself and other people a lot of damage by propagating this kind of nonsense.
As for Ngunjiri’s final suggestion on Monday that perhaps Cord needs to look for its own “Tony Blair” – well! Would this be the same Tony Blair (unfondly known to some as ‘Tony B-liar’) who took Britain into a phoney and disastrous war with Iraq?
The same Tony Blair who promised to cede the UK premiership to Gordon Brown, then reneged on this and set the stage for long-drawn-out and damaging wrangling in the UK Labour Party, before he was finally humiliatingly forced from office by Brown?
The same Tony Blair accused of greed and get-rich-quick schemes (shs.40 million for an after-dinner speech, anyone?)? The same Tony Blair who paid just a fraction of the tax he should have last year, thanks to the complex web of companies he has established?
Great thinking, Ngunjiri! That’s just what this country needs!
As for Ngunjiri himself, I can suggest what he needs. To paraphrase his advice to Cord, I suggest Ngunjiri needs a fresh new outlook and a fresh new “narrative”. Only then, perhaps, will he not appear simply to be hopelessly throwing up his hands in the apparent belief that ‘Whatever happens, happens’. That is not the way positive change has or will ever come to this country.

The writer is a freelance journalist

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