Sunday, February 12, 2012

Time to face reality

It is a rare thing to see political parties marching in lock-step over anything of significance. Therefore, it is exciting to see PNU, the PNU Alliance, Wiper Democratic Movement and sundry elements of the G7 and G47 joining hands to bring down the Minister of Justice, National Cohesion and Constitutional Affairs a peg or two. The good minister's sin, it seems, has been that he has taken a hard look at the provisions of the Constitution, applied a legal mind that has been honed over two decades, and proclaimed that the leading lights of the anti-Raila brigade cannot, and should not, put themselves forward for the presidency while they still face the prospect of an international trial for crimes against humanity. Mutula Kilonzo, the minister in question, happens to be the Secretary-General of the Wiper Democratic Movement, whose leader happens to be the Vice-President and a member of the triumvirate determined to stop Mr Odinga from becoming Kenya's fourth president. 

The Vice-President's colleagues, Uhuru Kenyatta, the leader of KANU and William Ruto, the ODM deputy leader and, apparently, leader of the United Republican Party (which factions of the republic the party wishes to unite remain a mystery for the rest of the nation), are the reason why his party apparatchiks are determined to teach Mutula Kilonzo a lesson. These disparate forces are determined to bring a censure motion against the justice minister for his public statements that not only contradict what the Attorney-General has publicly stated but also what the Wiper Democratic Movement's leadership (bar Mr Kilonzo, of course) have stated, that is, that Mr Kenyatta and Mr Ruto are free to put themselves forward for the presidency of Kenya, regardless of the indictments at the ICC hanging over their heads (and their political fortunes).

The irony is not lost that while Wiper Democratic Movement styles itself as a 'democratic' party, and that it espouses 'democratic values', it has decided to muzzle its Secretary-General for making uncomfortable remarks, going against the spirit of a free exchange of ideas. Lee Kinyanjui, one of the more vocal members of the censure Mutula movement is quoted as saying that the motion will be before the National Assembly even before they engage in the rigmarole of prayers; they are that determined to show Mutula Kilonzo the door. One must pause and ask, "Doth the lady protest too much?"

Until the promulgation of the Constitution, Mutula Kilonzo had rarely demonstrated a capacity for reading the public mood and acting in that interest. He was frequently castigated for placing fidelity to the law above placating the public, whose clamour for reforms only grew louder the more he went about his duties. Once the Constitution was promulgated, however, what was Mr Kilonzo's Achille's Heel became his standard, and for once, his strict constructionism of the law is in line with the public mood. As Martha Karua's successor to the justice ministry, Mr Kilonzo tried in vain to advise the Don't Be Vague, Go to the Hague Brigade that it was a bad idea. Together with the President and Prime Minister, Mr Kilonzo attempted to get his colleagues in the august House to amend the former Constitution and enact legislation to establish a local tribunal to try those who would be found to bear responsibility for the violence that brought so much pain and misery to hundreds of thousands of Kenyans after the 2007 general elections. At the time, of course, it was unknown who would be indicted and many, perhaps with disguised Schadenfreude, hoped that it would be Mr Odinga and members of the ODM. They saw his and President Kibaki's attempt at setting up a local tribunal as a blatant attempt to set the stage for manipulating the courts in Mr Odinga's favour.

They must be kicking themselves for this gross miscalculation. Mr Odinga may have called for mass action when it became clear that he was being robbed of victory but no one has been able to link him directly to the violence that ensued. No one has been able to show that Mr Odinga paid or organised marauding gangs to attack his political opponents. To date, other than the call for mass action, Mr Odinga remains blameless for the violence. The Office of the Prosecutor of the ICC, however, is convinced that Mr Kenyatta, Mr Ruto, Joshua arap Sang and Francis Muthaura bear responsibility for the violence and is determined to prosecute them before the ICC. The narrative has now changed. Those that were loudest in calling for an ICC trial are now determined to paint it as a scheme by the Prime Minister, the US President and the Prosecutor of the ICC to cut short the promising political careers of Mr Ruto and Mr Kenyatta, and their public statements at every ostensible prayer rally they have attended highlights this fact. Thus, every time the justice minister opens his mouth and states that they are barred, by the Constitution and the law of Kenya, from standing for the presidency, they see the Prime Minister's hidden hand in the justice minister's statements. The man that warned them of the folly of an ICC trial has now become their bitterest enemy and new reasons continue to be fashioned for why the minister speaks as he does. Indeed, one of the new reasons to come to light is that Mr Kenyatta refused to bend the law in Mr Kilonzo's favour when the Kenya Revenue Authority demanded back-taxes that run into hundreds of millions of shillings.

The censure Mutula brigade is playing fast and loose with the memories of long-suffering Kenyans. When he brought the Constitution Amendment Bill to Parliament in 2009, Mr Kilonzo offered the naysayers free legal advice; the ICC was a court that could not and would not be manipulated by the suspects. They refused to heed his warnings. When the Proposed Constitution was still in the process of being harmonised, he warned them against the inclusion of certain clauses including the International Law Clause that makes international law part of the law of Kenya. Again, they refused to heed his warning. When various Bills were introduced in the National Assembly to implement the Constitution, they refused to ask the justice minister for his legal opinion, determined as they were to fashion political clauses that would benefit them down the road. For them to cry foul at this stage and turn a stridently deaf ear to the minister's opinions on whether the two may or may not stand for the presidency is the height of hypocrisy. The censure motion is an attempt to turn back the clock and pull the wool over Kenyans' eyes. It is time that someone called them on it and forced them to face reality.

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