By Chief Charles A. Taku*
Honourable Raila Omolo Odinga, the controversial and polarizing Kenyan opposition politician is a conflicted personality. He is a career politician and civil society political activist combined. These qualities make him unmistakably the Lakayana of Kenyan politics. While both qualities may on occasion advance his diverse political objectives, they often collide at critical moments in his political life making the attainment of his political ambition elusive.
These qualities make him complex; even mesmerizing. Those who love and adore him, do so passionately. Those who abhor and distrust him do so passionately in equal measure. He is unmistakably a polarizing personality in dire need of political power in a country in need of a uniting leader.
During the last election which earned Uhuru Kenyatta his first presidential mandate, Philip Ochieng, one of the most respected journalists in Kenya, wrote in the Sunday Nation that following on the footsteps of his father Jaramogi Odinga Odinga, Raila Omolo Odinga was his own worst enemy. All it needs to prove the validity of this assessment, is to provide Raila with a platform and crowd. Then he has no control over his speech, its consequences and its political cost. This quality was on display when he faced the press, his cheering supports and an anxious electorate after the delivery of the Supreme Judgment in his favour annulling the presidential elections in which President Uhuru Kenyatta was proclaimed the winner.
He was everything but presidential in his speech. Rather to take the opportunity of that rare election petition victory to calm a politically restive nation. He threatened, castigated, criticized, pontificated, and baited his perceived or real enemies. In short, he sounded more like a civil society political activist during his election petition victory speech than a presidential candidate who had just been granted another lease of life to contest a crucial election in two months. In the end, he failed to even appeal to the electorate to vote for him.
The hard fact is that, the decision of the Supreme Court of Kenya annulling the Presidential election result that favoured President Uhuru Kenyatta should be applauded not for its outcome, for like all judicial decisions it still has to undergo the rigours of informed scrutiny, but for the fact that at long last an African country, and Kenya for that matter, has proved that it has the capacity to deliver effective, efficient and independent justice. The International Criminal Court with the hypocritical approval of erstwhile colonial Western powers relied on this fallacy to violate the complementarity safeguards of the Rome treaty to inappropriately target Kenya and indeed Africa in its interventions from when it was established.
The constitution of Kenya that provided the constitutional guarantees of the separation of powers which was exercised in the full glare and satisfaction of the world at large in particular the Western world, in this election petition, was in place when Moreno Ocampo, urged on by the same Western actors and by Raila Odinga intervened in the 2007 election violence conflict in Kenya on the grounds that Kenya did not have an effective, efficient and independent Judiciary to investigate and punish the perpetrators of the 2007 election violence. With the present decision, the scales of prejudice have sudden fallen and the Kenya Judiciary is all praises from the patronizing erstwhile colonial West; not for the justice of the Supreme Court judgment that is still subject to judicial scrutiny, but for the fact that in context, it comes close to doing what they would have wanted done but for the fact that in this case, popular sovereignty as opposed to judiciary fiat may yet again determine the outcome of the elections in two months.
I must admit, and all respecters of the rule of law must, as President Uhuru Kenyatta did, that the Supreme Court of Kenya and indeed the lower courts before whom election petitions were brought, fulfilled their constitutional mandate effectively, efficiently and independently. For this, the Judiciary of Kenya merits praise. It always has. It is another thing if the outcome of judicial proceedings before the courts were acceptable or not. In this case, the ultimate arbiter, call it the supreme judge is not the judiciary, it is the sovereign people of Kenya in their exercise of its inalienable, unimpeachable right of popular sovereignty to elect its leaders.
If there was any lingering doubt therefore, about the falsity of the claims that Kenya did not have an independent, efficient and effective judiciary as alleged by Moreno Ocampo and his handlers, then the successful litigation of election petitions by Kenyan lower courts and ultimately, its Supreme Court has proved them wrong. However, the ghost of the ICC was visible in this election and will remain visible in the next round and future elections. In many ways, it will inhibit the ability of Raila Odinga to win the repeat elections.
This may be discerned from the misplaced message conveyed through his Supreme Court election petition celebratory speech. His resolve to prosecute election officials instead of using the moment to celebrate in measured humility, reassure millions of voters who perceive him as vindictive, abrasive and dictatorial, may further alienate him from critical voters who value peace and unity of the nation over triumphalist display of person power.
During the last election which saw Uhuru Kenyatta win his first mandate, Raila squandered his best opportunity of ever becoming the President of Kenya by deconstructing a formidable alliance he formed with a youthful, ambitious, savvy and perhaps most skillful politician in Kenya Deputy Vice President William Ruto. He did so by offering him as a sacrificial lamb to Ocampo.
In his miscalculation, he perceived the ICC intervention as a means of depriving William Ruto of the possibility of sharing in the effervescence of his then rising political profile. He miscalculated, for Mr Ruto is a political product of the majority ordinary people of Kenya who see their image in him and consider him as one of theirs. The ordinary people of Kenya have long traced and refined his path to presidential power and this is obvious even to the jaundiced eye. He has merely been playing for his time to come to embark on the journey to fulfill his people’s will. A smart politician, he did not want to squander the opportunity when the potential path to the presidency in 2020 came calling. Raila Odinga’s political miscalculation and the ICC proceedings provided him that opportunity.
Uhuru Kenyatta and William Ruto are good students of history. The patronizing support given by Western countries to the ICC proceedings gave them the opportunity to position themselves as defenders of the sovereignty of Kenya and the liberating cause of new Africa. The humiliating campaign against the ability of the judicial institutions of Kenya to conduct post-election violence proceedings, the same institutions that are being hailed by the same erstwhile colonial Western countries, required genuine leaders to standup to the challenge and mobilize Kenyans to defend their national pride and their sovereignty. Uhuru Kenyatta and William Ruto offered this leadership while Raila Odinga largely portrayed himself through his own public pronouncements as a Western poodle in his unqualified support for the ICC proceedings. Whatever motivations he had for seeking political leadership while supporting proceedings which placed the sovereignty of his country under the ward of the ICC, in the political context of the proceedings, he was perceived as relying on the case as a means of settling internal political scores and eliminating his political opponents from contesting the elections against him.
That backfired and he lost the elections. The credibility of the ICC came out seriously bruised in the process because its intervention was not perceived to be in the best interest of Kenya and the victims of the election violence. The overwhelming evidence of Western interference portrayed the Kenya ICC cases as politically motivated. At the end of his mandate as the Chief Prosecutor of the ICC, Moreno Ocampo in published newspaper and television interviews confirmed this fact.
During this election, an ICC official in the Prosecutor’s Office made a misguided statement in a conference in Arusha in neighbouring Tanzania linking the potential outcome of the Kenya election to a potential reviving of the ICC cases in the case the opposition candidate won. This admittedly uncoordinated statement nevertheless places the statement by Raila Odinga about prosecuting election commission members into the providential focus which Uhuru Kenyatta and Mr William Ruto may in addition to their largely positive development record, ride on to victory once again.
Why must Raila Odinga want to get election officials prosecuted when the Supreme Court did not make a finding of criminal conduct? Was this a forewarning that a result short of victory for him in the repeat elections will not be accepted by him? Was it a forewarning of another round of litigation to dissolve the election commission and compromise the organization of the election he may lose? Will this not lead to a constitutional crisis where this to happen? No matter from what perspective this attack and threat of prosecution may be perceived, it portrays Raila Odinga as a potentially vengeful politician who thrives on the politics on politics of bitterness.
Raila Odinga squandered his moment of glory in focusing on yet another prosecution rather than taking advantage of the glare and focus of the moment to mobilize his base and Kenyans in general to give him their votes in two months. He failed to appeal for peace, reconciliation and national healing after a very polarizing judicial experience. He failed to explain why he sought for the poll to be nullified to the electorate. He impressed professional judges of the Supreme Court about his reasons for seeking and obtaining an annulment of the elections in which he lost. He still must do a better job explaining to the electorate he will be facing in two months.
The case, its outcome and his celebratory rhetoric may energize the majority who voted against him to defend their franchise by voting against him in even greater numbers. The bane of Raila Odinga has always been his inability to reconcile Raila the civil society political activist from Raila the career politician. He has never understood that although bed partners, these attributes are on critical occasions strange bed fellows. The bull instant in political activism is at critical moments, the bane of career politicians. It may take an election petition victory and a repeat election to lose for Raila Odinga to finally come to terms with this reality.
In contrast, Uhuru Kenyatta was presidential and humble in his speech in which he disagreed with the outcome of the judgment but accepted the outcome nevertheless. Calling for peace to reign, he took the opportunity to relaunch his election campaign. He reminded the people of Kenya to whom he and his deputy have turned to since the ICC challenge, that the power to decide the destiny of Kenya belonged to them not to six individuals constituting a court of law.
That appeal succeeded and helped them to win the Presidential elections regarding the ICC proceedings. It may succeed once more with the Supreme Court Judgment acting as a tonic, call it a fig leaf of mobilization for a greater electoral victory come two months. Raila Odinga by promising Kenyans further court cases and prosecutions may have paved the way for the people to deny him that opportunity. He may have unwittingly placed the spotlight on the focus on the possibility of a revived ICC nightmare under a Raila Odinga presidency. He seems not to have learnt the painful lesson that his prior support for this nightmare among other reasons led to a majority of his people rejecting him in the last election.
Kenyans know that Raila did not challenge the election outcome which largely favoured his opponent. He challenged but the constitutionality and the legality of the conduct of the elections. His greatest challenge remains how to convince the majority that elected Uhuru and Ruto to switch over and vote for him. If he carefully reflected on the Supreme Court Judgment prior to making his celebratory speech, he should have known that that Judgement did not find any wrong doing against Uhuru Kenyatta based on which the electorate would have sanctioned him. On the contrary, the constitutional violations, illegalities and procedural inadequacies by the election commission deprived him of victory in an election whose outcome was neither in doubt nor contested by Raila in his petition. Raila in his celebratory speech inappropriately sought inappropriately to place blames for the failures of the election commission on his adversary where none was found by the Supreme Court. If his Supreme Court election speech is a template of his election performance in two months, then I regret, he may not prevail in the court of popular sovereignty.
There are several logistical and organizational odds that militate against his ability to conduct an effective campaign within just two months. He benefitted from a steady flow of international goodwill, tactical and strategic support during the annulled poll. It is inconceivable, considering the electoral map of Kenya, that this key constituency will again invest in a repeat election when the outcome of the annulled election was never challenged. The appeal for calm by President Uhuru Kenyatta apart, the calm that followed the Supreme Court Judgment may be an unmistakable exercise of confidence that in two months this silent majority may yet again reassert its sovereignty over its choice of leader. And Raila Odinga tacitly acknowledged the reality of that choice by not challenging the critical choice that was made in the annulled poll.
- Chief Charles A. Taku is an international lawyer writing from The Hague The Netherlands.