Is Mutula Kilonzo's stand on the pre-election disqualification of Uhuru Kenyatta and William Ruto principled or premised on some long-term strategy to get Kalonzo Musyoka to the head of the line? Mr Kilonzo is undoubtedly a deft hand when it comes to the practice of law but he is still very much the novice when it comes to the practice of politics in Kenya. His long stint as one of President Moi's sharpest legal advisors blinded him to the shortcomings of the edifice that President Moi built. He stood by Moi's side, offering him advice on a myriad of matters, and watched silently as the country was riven with political and ethnic divisions. When he was first nominated to Parliament by KANU, it was only because Moi said that he could. It had nothing to do with his non-existent political skills, but by his ardent demonstration of loyalty to the system that had for decades been used to steal from the Kenyan people. It is not lost on many that Mr Kilonzo and Mr Musyoka were loyal subjects of Moi's system. So, is his stand on the eligibility of Mr Kenyatta and Mr Ruto to stand for the presidency principled or a strategy to keep the way clear for Mr Musyoka to prevail over Raila Odinga at the next general elections?
The High Court lifted the gag order it had placed during the hearing of case challenging Mr Kenyatta's and Mr Ruto's eligibility to stand for the presidency while their ICC trial hangs fire. So, despite Mr Kilonzo's statements regarding the eligibility of the two, it falls on the High Court to rule whether they may stand for the presidency. He is not the final word on whether the two are eligible. His is only an opinion and it can only be challenged in the realm of a robust public debate. This is the missing ingredient in the making of the Second Republic. Kenyans are still held hostage to the old way of doing things, where loyalty to the ethnic community trumps public debate on the eligibility of persons to stand for political office in Kenya. It is for this reason that the apparatchiks of the Gang of Seven were apoplectic when Mr Kilonzo suggested that Mr Kenyatta and Mr Ruto were disqualified from the presidential contest. Rather than acknowledge that Mr Kilonzo makes a legitimate statement of fact, they are busy looking for an ulterior, ethno-motive to challenge his opinion. It is also not lost on many that a majority of the men fulminating against Mr Kilonzo come from Mr Kenyatta's back-yard, if not from his ethnic community. Their threats against Mr Kilonzo and Mr Musyoka betray their ethno-chauvinism, that they are incapable of countenancing the possibility of a person from another community succeeding Mr Kibaki at State House.
There are those who fear that the disqualification of Mr Kenyatta and Mr Ruto from the presidential contests sets the stage for the whittling away of democratic gains made since 1992. They argue that it is undemocratic to prevent the people from exercising their sovereign right to elect the candidates of their choice. They argue that the disqualifications in the Constitution are sufficient to weed out the men and women who should not be elected to public office. They point out that where popular candidates have been excluded from elections, nations have fallen to civil strife and war. Egypt and its Muslim Brotherhood and The Ivory Coast with Alassane Ouattara are mentioned. However, they refuse to accept that Kenya is learning from the mistakes of its peculiar history. Since Independence Kenya has suffered at the hands of popular politicians, whether they were guilty of heinous crimes or not. It is not outside the realm of sanity to ask whether the Second Republic could survive the election of a president accused of heinous crimes, even if that candidate has not been convicted of the crimes in question. In such circumstances it is perhaps fit and proper that despite the demands of a majority of voters that candidates facing charges of crimes against humanity are excluded from the election. Kenyans cannot be trusted to make the right choice. They have not done so in the past and there is not proof to show that they will do so in the future.
The Second Republic cannot be founded on crimes against humanity. It cannot be helmed by men and women who have been accused of committing crimes against humanity. It cannot be kneecapped by calls to protect the candidacies of men accused of crimes against humanity. If for nothing else it is fit and proper that the debate over the candidacies of William Ruto and Uhuru Kenyatta is being carried on in public. They stand accused of serious crimes. They are undoubtedly popular. But Kenyans must be allowed to debate the veracity of their candidacies. They should not simply be given a free pass simply because it is the democratic thing to do. Those days of simply going along to get along are long gone. It is time the naysayers accepted this and moved on.
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