Tuesday, Mar 03rd 2015

Withdrawal of The Nominees Suspect

Friday, February 25, 2011 - 00:00 -- BY PHEROZE NOWROJEE

The principal motivation in the recent crisis was to shield Hague suspects. The principal lesson was the demonstration of the people’s power. The principal mode was the evocation of the new Constitution of Kenya. The principal dangers were the breakdown of constitutionalism, conflict between the arms of government, and the continuous use of extremist politics for the benefit of a few individuals.


Some of the Hague suspects themselves were part of the withdrawal. We should therefore distrust gifts such as these from givers such as these.  Shielding some of the Hague suspects was the very purpose of the gamble. It failed. The A-G’s clear position made loss in the Petition inevitable. Hence the sudden withdrawal. To nominate appointees even though the ground had not been adequately prepared for their public acceptance and even though there had been insufficient political agreement was a risk. In the event, it led to an impasse. It was only after the noisy press conference that the promoters of the nominations realised the irony : as long as the impasse remained, the reality of the Hague remained. They had thought the Constitutional Court or a censure motion would end the impasse within days. Neither was a possibility. Time was running out if certain matters were to be put in place before the ICC Judges gave their ruling. The answer was the sudden withdrawal of the four names.


It is clear that the promoters of the names thought that it was better to accept the political losses that the withdrawal would inevitably bring about, than to let the delay extend further. So how will this help them help the suspects ? That is problematical. The reversal wipes the slate clean, and allows them to re-start the process of creating a local alternative to the ICC. It permits an argument that a credible local process could be presented to the Security Council the next time around. That is doubtful, because the machinations surrounding these nominations tainted their makers and only confirmed the many doubts about their intent. What is visible is self-interest and not the national interest.


Against them also is the continuous opposition to constitutionalism that some of the suspects displayed through the crisis. Their statements also showed that they believed that Parliament should be subordinate to the Executive. They displayed a determination not to adhere to any of the principles of accountability. All this too would be taken into account.


The dangers were manifest to Kenyans, young and old. The conflict was tearing the country apart. It was creating new, and deepening existing, divisions in the country. The country’s very existence was being threatened. A constitutional crisis was visible. A continuous conflict between two arms of state, Legislature versus the Executive, Parliament versus the Judiciary, was a distinct possibility.  A distinct probability was conflicting decisions on the validity of the nominations.


The attempt was to force through to a 2007-type position of dominance from which favourable bargaining could proceed. It was premised on a primitive reading of parliamentary democracy. Majoritarian numbers is not all that democracy is about. So that when Hon. Gitobu Imanyara’s question and the Speaker’s Ruling challenged this, the political adolescents among the promoters vowed in their disappointment they would teach certain persons a lesson. It turned out ultimately that it was their own education that was advanced, albeit reluctantly.  Some banged tables, some called the Speaker’s Ruling dictatorial. These were the persons who through 24 years of dictatorial behaviour, were not able to muster sufficient courage to call their own patrons dictatorial. 

The people’s power manifested itself in the public interest. Several women’s groups promptly brought a petition in the High Court. They were backed by counsel of experience and commitment. They were then supported by large numbers in court and out of it. The support was broad-based.


The new Constitution of Kenya was the bulwark from which the challenge was built. The Constitution provided the motivation, material and the principles by which the country responded to the nominations. The Court Petition was anchored in its provisions. The Attorney-General stated his opposition by reference to it. The High Court gave the interim conservancy orders on its basis. The Commission for the Implementation of the Constitution rejected the nominations by reference to it. The Speaker in the National Assembly ruled by reference to it.  


We should not get this close to disintegration again. Extremists of all hues need to pull back from the continuous rhetoric of destruction, and personalized politics.


The writer is a lawyer