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September 25, 2018

NASA’s one-tribe demos and Judiciary-EACC standoff

A NASA protester urgues with a police officer as they pressured for the resignation of Ezra Chiloba and other officials at the IEBC offices in Anniversary Towers along University Way on September 26. /Jack Owuor
A NASA protester urgues with a police officer as they pressured for the resignation of Ezra Chiloba and other officials at the IEBC offices in Anniversary Towers along University Way on September 26. /Jack Owuor

The peaceful mass protests called by the National Super Alliance to drive the Ezra Chiloba IEBC commissioners out of office by the October 26 repeat presidential election have not been a phenomenal success.

The first protests took place only in Nairobi and NASA leader Raila Odinga’s Kisumu backyard and they have been anything but spontaneous or passionate. There have been explosions of violence, entire business districts have had to lose the day’s business every Monday and Friday for a couple of weeks now.

Countervailing volunteer groups such as the Nairobi Business Association have emerged, urging traders to put in a full day and warning against destroying and looting property.

The regions of the three other NASA principals – Kalonzo Musyoka’s Ukambani (Machakos, Kitui and Makueni), Musalia Mudavadi’s Western (Vihiga) and Moses Wetang’ula’s Bungoma initially saw no demos either, not even of genuinely peaceful twig-waving protestors. On all sides, including inside the ruling Jubilee Party and the mass media, there have been calls to watch out that the demos do not escalate into the mass action of the 2007-08 post-election violence.

It’s a thin line between “peaceful mass protests” and the 2007 PEV “mass action”. Initially, it happened in Kisumu, Siaya, Homa Bay and Migori, and was dismissed by some Jubilee observers as third-rate roadshows. Even the Nairobi demos outside the IEBC’s Anniversary Towers headquarters had participants drawn mainly from these Luo Nyanza counties.

But on Tuesday, there were demos in 10 counties — Nairobi, Embu Kisumu, Mombasa, Homa Bay, Migori, Kitui, Machakos, Busia and Kakamega.

On Friday, there were peaceful demos in Nairobi, Mombasa, Kisumu and Bungoma.

Raila has called for Kenyans to go back to the streets in recent weeks to prevent Jubilee from “returning Kenya to the dark old days of the Kanu regime.”

This is rich. Surely it must occur to Raila at times like these that co-principals Kalonzo, Mudavadi and Wetang’ula were some of former ruling party Kanu’s top officials in the years the then single party was winning the Presidency on a minority vote basis. Kalonzo was Kanu National Organising officer for two decades, Mudavadi was both a vice chairman of Kanu and the party’s final Vice President for barely three months in 2002. Wetang’ula went to Parliament for the first time by being nominated by Kanu, having been the party’s very well paid lawyer. In the meantime, a number of significant NASA political players from Western and Coast have defected and joined in President Uhuru’s reelection campaign.

In 2001, Raila himself abandoned former Finance minister and Vice President Mwai Kibaki and Charity Ngilu to go and replace the nefarious Joseph Kamotho as Kanu Secretary General and learnt how to tingiza the Kanu one-finger salute of the Baba and Mama party. In the so-called mass protests that opened the latest round of protests on Tuesday September 26, University of Nairobi students from Luo Nyanza are known to be the only group that tried to join the professional marchers deployed by the Orange Democratic Movement.

A top Jubilee observer of the unfolding scene who does not wish to be named told this correspondent, “We would like to invite them to inquire into the story of other students from poor families who participated in NASA-style type of protests in the 1980s and 1990s. Some are alive, such as Mghanga Mwandawiro, some died. Young Kenyans, and especially university students, should think long and hard about why they are being urged to go into the streets. This is a case of no more than the youth of one community being exploited and taken advantage of. If it weren’t, there would be demos in Ukambani, Western, Coast, Northeastern, you name it.”

And then on Friday the Star newspaper had a Page One splash headline, “Judiciary and EACC in standoff over ‘forged’ documents”, by Kamore Maina, who reported:

“Allegations of forged documents in the presidential petition are pitting the Judiciary against the police, the Ethics and Anti-Corruption Commission and the Directorate of Public Prosecutions.

At the heart of this standoff is the validity of the Supreme Court judgment – and the documents forming its basis – that overturned President Uhuru Kenyatta’s reelection. A rerun is set for October 26.

Was that 4-2 judgment on September 1 based on accurate documents, or were they forged to discredit the election and favour the petitioner, NASA presidential candidate Raila Odinga?”

The presidential election annulment saga itself appears to be acquiring a new dimension, based on President Uhuru’s own condemnation of the drastic ruling as a “judicial coup attempt.”

Jubilee supporters increasingly perceive judicial activism and conspiracy surrounding the unprecedented annulment. Nairobi lawyer Kioko Kilukumi, suing on behalf of a voter, has argued the reports presented by Supreme Court Registrar Esther Nyaiyaki and the dissenting judgment by Justice Njoki Ndung’u were different, “and both could not be correct”.

He demanded an investigation into whether the Registrar’s documents were forged. As the Star reported on Friday, dissenting Supreme Court justice Njoki Ndung’u “said she examined all original documents and found the election was proper and Kenyatta duly elected”. After Kilukumi’s complaint, DPP Keriako Tobiko announced a joint team from the EACC and DCI would investigate and appropriate action would be taken.

The team wrote to the Judiciary last month, asking to be provided relevant documents. They requested Nyaiyaki appear before the investigators. The Judiciary has declined the invitation.

This led to a crisis meeting in the Judiciary, in which the leadership reportedly felt threatened. Sources familiar with the meeting said they contemplated obtaining orders from the court to block the investigation until CJ David Maraga, who was in Tanzania, could give directions.

Chief Registrar of the Judiciary Anne Amadi last month responded to the letter, saying the documents can only be released through a court order obtained from the Supreme Court.

“In the circumstances, you are advised to make a formal application before the Supreme Court for the release of the (documents) and any other orders you may require,” she said in her letter to EACC head of investigation Abdi Mohamud. It was copied to the CJ and Nyaiyaki.This was the first time the DPP’s office had been directed by the Judiciary to obtain a court order from the Supreme Court. Such applications are normally made to Registrars.

The police now have asked Attorney General Githu Muigai to give his interpretation of whether the position of the Registrar – that orders to access the documents must come from the Supreme Court – is proper. Both the Supreme Court and the JSC are headed by CJ Maraga, who recently swore he was ready to “pay the ultimate price” in defence of the Constitution.

What happens next? If the AG gives the EACC the nod and they set about probing the Registrar, things could become really interesting – with less than 20 days left before the Supreme Court-ordered Presidential rematch. The resultant legalistic clash between the CJ and the AG would be titanic.

On the other hand, there could be those, on all sides, urging that the AG reserve his response until after the rerun election.




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