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Until Sunday’s meeting in Tinderet constituency by senior ODM leaders, including four of the five ‘Pentagon’ members, the call for the release of suspects held in connection with post-election murders, arsons and other offences was associated with Rift Valley MPs and Lands minister, Mr James Orengo.

The support of the call by Prime Minister Raila Odinga, Deputy Prime Minister Musalia Mudavadi, Mr William Ruto, Mrs Charity Ngilu and Mr Paul Otuoma, gives the matter a different complexion.

ODM has made a mistake that it should correct to facilitate the reconstruction of the country.

The issue of releasing suspects is connected to bad governance, which is to be addressed in a democratic constitutional review. It also has grave implications for economic recovery.

If ODM does not reconsider this matter, hopes for the completion of constitutional review may be dashed.

National debates both before and after the last General Election, including the current one about suspects, make it clear that the country has not provided its citizens with adequate civic education to enable them to handle the normal challenges of deepening democracy.

First, it was Orengo, Agriculture minister Ruto and Konoin MP Mr Julius Kones on the case for the release of suspects. Later, they were joined by four of the five ‘Pentagon’ members.

The most succinct argument on this issue comes from Kones and Ruto. Without any qualms whatsoever, Kones, a representative from the Central Rift Valley, has called for the release from custody of about 1,000 people suspected of having committed murder, arson, theft and malicious damage to property after the last General Election.

He is oblivious of the fact that in every district — and in the world at large — there are every day such suspects who are in custody in the executive branch’s discharge of its constitutional duty to execute or enforce law. Without enforcement of criminal law, civilised life is impossible.

Kones argues that it was these suspects — not people who voted for PNU, ODM-Kenya and ODM MPs — who created the present Government through their crimes. Therefore, he argues, they deserve reward, not punishment.

Ruto has advanced an identical argument (with which Orengo agrees) — that the criminal acts of the suspects are allegedly the ones, which gave birth to the Grand Coalition Government and so it does not make sense to praise the power-sharing agreement while the youth are being detained.

On Sunday, the PM, Deputy PM Mudavadi, Industrialisation minister Mr Henry Kosgey and other MPs allied to ODM joined in that call. By so doing, they put before the nation for debate very important issues of nationhood, democracy, constitutional change, rule of law and distribution of wealth — particularly land — even before the constitutional review resumes.

ODM’s contentions between December 30 last year and February 28, when the power-sharing agreement was signed, were that:

(a) The Electoral Commission of Kenya (ECK) so mismanaged the presidential election, that ODM could not accept its verdict;

(b) The party does not support use of violence to resolve election disputes; it wanted a political solution to the problem, not a legal one, as it does not trust the Judiciary;

(c) Some of its supporters were so annoyed by the election mismanagement that they violently protested the results announced, while others engaged in lawlessness.

It was on the basis of these contentions that ODM entered into power-sharing talks with PNU, whose contentions were as follows:

(a) Its candidate, President Kibaki, won re-election and was lawfully sworn in on December 30;

(b) The Constitution provides for the adjudication of election disputes by an independent Judiciary and anyone disputing the result was free to have the matter decided upon in court;

(c) Because a political solution was sought by ODM, PNU was prepared to negotiate one in the interests of the country.

Clearly, ODM is now contradicting the very basis on which it negotiated the power-sharing agreement, as communicated to voters and the international community. It is on that basis that ODM is sharing power with the PNU alliance today.

The rival contentions above are permissible in a democracy. However, the new contention — that it was through the crimes committed by suspects in custody that ODM created the present Government — is politically and morally outrageous. It destroys the credibility of ODM as a political party committed to the rule of law in a democracy.

The claim means that ODM believes in the use of force in changing or constituting government. It, therefore, follows that it does not qualify to wield power under the Constitution.

The Republics of Pakistan and Nigeria have used this view to support changes of government by the military.

These two nations have no useful democratic experience that Kenya can draw on. In democracies, the government must be changed through the ballot only.

It is only a revolutionary movement and the military that use force to change governments. Such political phenomena are not known in democracies.

Through Orengo, ODM has added another dimension to the debate. He contends that the suspects are, in law, not different from the members of the ECK, who allegedly provoked the suspects’ actions through their mismanagement of the election.

Assuming, for the sake of argument, that members of the ECK can be charged with criminal offences, his argument is still not supported by Section 82(9) of the Constitution, which provides that: "Nothing in sub-section (2) shall affect any discretion relating to the institution, conduct or discontinuance of civil or criminal proceedings in a court that is vested in a person by or under this Constitution..."

Section 82(2) of the Constitution provides that subject to sub-sections 6, 8 and 9 no person shall be treated in a discriminatory manner by a person acting by virtue of any written law or in the performance of the functions of a public office or a public authority.

All these ODM arguments are both wrong and dangerous. They are dangerous because of their negative implications for the economy, rule of law and democracy.

In a market economy the individual’s incentive to work comes from the belief that one will acquire, own and enjoy property and, further, that the law will always protect it. Without that guarantee, no one will the take trouble to create wealth.

The credit system, which the banks use to make money is based on ownership of property, which is mortgaged or charged to them. Property, which the law does not protect is worthless.

The Ministry of Lands, which protects title or ownership of land, is a key player in the economy. In Kenya’s agricultural economy it is areas in which individual ownership of land is recognised that productivity is greatest. Therefore, the views held by Ruto and Orengo have great implications for the economy.

ODM’s arguments support the use of violence as part of the electoral process and is an attempt to effect illegal and immoral land redistribution, which Kanu appeared to permit. Such attempts were first made in both the Rift Valley and Coast provinces between 1991 and 1997.

The Report of the Judicial Commission Appointed to Inquire into Tribal Clashes, which was published by the Government Printer in 1999 and released in 2002, and an article by Mr Peter Mwangi Kagwanja in Democracy in Kenya (by M Rutten, Alamin Mazrui and Francois Grignon, Foundation Publishers, 2001), titled Politics of Marionettes: Extra-legal Violence and the 1997 Elections in Kenya, describe these political phenomena.

The post-election violence marked a determination on the part of some Rift Valley leaders to continue with that unconstitutional phenomenon. The arguments manifest an inadequate understanding of Kenya’s constitutional theory and practice as from 1963.

Ownership of land, and any other form of property, changes hands through only purchases, court orders, gifts or inheritance.

During the post-election violence some people in Nairobi purported to effect a redistribution of residential houses and businesses. As in the Rift Valley, they threw their owners out and have occupied them since then. One expects them to move out as they learn that such purported redistributions are unconstitutional null and void.

A heresy associated with majimboism emerged around 1991, together with multi-party era ethnic or election violence. That heresy is that the Constitution recognises or contemplates loss of ownership of property for communities not living in an area in pre-colonial Kenya.

It was because of that heresy that between 1991 and 1997, and also after December 27 last year, some people in Rift Valley Province took the law into their hands and sought to remove ‘foreigners’ from Nyanza, Western, Central, Eastern and other provinces.

It is these law-breakers ODM is seeking amnesty for. In doing so, the party rejects the democratic principles on which this nation was founded. They also seek to perpetuate distortions of democracy witnessed since 1963 that Kenyans are seeking to correct through a democratic review of the Constitution.

These distortions are:

(i) of the principle that all elections must be free and will be supervised by an independent Commission; The Electoral Commission, as an institution of democracy has been progressively weakened since 1963; the independence constitution established an independent commissions to supervise Lower House and Senate elections (see section 48 which established an electoral commission made up of the Speaker of the Senator’s chairman, the Speaker of the House of Representatives as the Vice-chairman, a member appointed by the Governor General acting in accordance with the advice of the Prime Minister, and a member representing each Region; the version of the 1963 Constitution referred to is contained in Legal Notice No. 718 of 1963).

(ii) of the principle that a constituency must have the same number of registered voters; see Report of the Kenya Constitutional Conference, (1962), paragraph 3, and section 42 of the Constitution as interpreted in Michuki & Another -v-Attorney-General & Others, (2003)1, EACA, 158; the court observed that "there are some constituencies that have over 100,000 voters and others with less than 10,000; yet in both cases, their representatives have the same or equal voice in Parliament"; this principle has been departed from since 1980s; this gerrymandering is documented by Francis Ang’ila Away, a member of the Kriegler Commission, and Francois Grignon, who served in the resource team of Kofi Anan during the recent mediation talks; their article is titled As Biased as Ever? The Electoral Commission’s Performance Prior to Polling Day in M. Rutten, Alamin Mazrui and Francois Grignon, Democracy in Kenya, Foundation Publishers, 2001, page 102; the result is that many Kenyans are today under-represented whilst others are over represented in Parliament because of the way constituency boundaries have been drawn; over representation is very strong in the Rift Valley province which has 49 constituencies; the practice of true democracy is not possible today because of this distortion;

(iii) of the principle that the Constitution will not be overhauled without he consent of Kenyans; see Report of the Constitutional Conference, 1962, paragraph 19 of Appendix II; and sections 61 and 63 of the 1963 Constitution; as held in Njoya & 6 Others –v- Attorney-General & 3 Others (2004)1, KLR, 261, a "yes" vote at a referendum for a new constitution must win; the Bomas draft constitution of March 2004 was drafted by delegates who were not elected by Kenyans;

(iv) of the principle that in Kenyans in elections and redistribution of wealth violence would have no role to play whatsoever; see section 197 of the 1963 Constitution; as the both the 1992 the Kiliku Select Committee Report on Tribal Clashes and also the Report of the Judicial Commission of Inquiry Into Tribal Clashes demonstrate violence was introduced into the country’s elections in the Rift Valley and Coast provinces between 1991 and 1997; violence was used to prevent voters perceived to be supporting the Opposition from casting votes; through the same violence the phenomenon of attempted land redistribution through violence started; the governments which were formed after the 1992 and 1997 elections profited from that extra-legal violence; according to ODM’s own admission, the post-December 27, 2007 election violence had the illegal goals of altering the electoral verdict and effecting land redistribution; Mr. Peter Mwangi Kagwanja has described this phenomenon in the article referred to above;

(v) of the principle that the rule of law would rule and all people would be equally subjected to law and be equal before the law; see section 21 of the 1963 Constitution which guaranteed every person enjoyment of the right to the protection of the law; since 1991, there have been, in Rift Valley and Coast provinces, endeavours to use violence to preserve political power and to purportedly effect land redistribution; the endeavours were illegal; it was because of the state’s failure to prosecute offenders that lawlessness rose to the 2008 level; and

(vi) of the principle that citizenship goes with rights set out in chapter 5 of the Constitution — the right to life, to liberty, not to be treated as a slave, not to the subjected to inhuman and degrading treatment, to own and enjoy property in any part of Kenya, not to be subjected to arbitrary searches, to the protection of law, to hold any religious view and political persuasion, to express oneself, to reside in any part of Kenya, to associate with whoever one chooses, not to be discriminated against and to seek remedies in court when any of these rights is violated; Chapter 5 of the constitution in which human rights are protected has suffered the least amendment since 1963.

It is these five and others distortions of the Kenyan democracy which led to the decision in 1996 that the Constitution must be re-written. It is also against the background of these distortions that one must view the debates on the resettlement of displaced persons and the campaign for the release of selected suspects in one part of the country.

Every day, in every part of the world, there are suspects held by police waiting to be charged in courts with offences the police believe they have committed on the basis of evidence in their possession. In Kenya, people are charged with criminal offences every working day. Some are convicted and punished, while others are acquitted on being found innocent or not proven guilty.

Of the post-election violence suspects in custody, those found innocent will be acquitted by courts of law in the normal way, while the guilty will be punished as provided by the law.

These phenomena are replicated in every democracy on earth. Indeed, the protection of life, bodily integrity and property is one of main reasons for the establishment of government by man.

To most people’ surprise, some Rift Valley MPs, and now ODM, argue that this universal phenomenon should not apply.

A question of principle arises: What is the conception of government and rule of law they have which has escaped the attention of political thinkers and statesmen of the world over the centuries?

-The writer is a leading human rights advocate and public interest litigator.