Today, the Court of Appeal declined to hear motions in 2 election petitons because of the disbandment of the Electoral Commission of Kenya and the failure by the government to establish the Interim Independent Electoral Commission. Mr. Justice Riaga Amollo chastised counsel for the applicant and counsel for the erstwhile ECK, and asked them 'who was instructing them?' If the ECK is 'dead', then all proceedings in which it is a party die with it. Indeed, Mr. Kioko Kilukumi pointed out that Cap. 2, Laws of Kenya, does not and cannot apply to the Constitution.
Today's fiasco could have been avoided if the drafters of the Constitution of Kenya (Amendment) Act (No. 10) of 2008 had included a savings and transitional clause. However, even this clause could not have cured the provisions of Cap. 2.
This is a pattern that has been repeated time and again since the creation of the Coalition Government of Kibaki, Odinga and Musyoka. The Amendments made to the Constitution in 2008 did not consider the impact those hastily drafted clauses would heve in the early part of 2009. Now, ODM claims that Amb. Francis Muthaura, the head of the civil service, is overstepping his mark and that his role should ideally be played by the Prime Minister. Mutula Kilonzo and James Orengo, two experienced senior lawyers, have squared off in this matter and neither is backing down, both claiming that the Constitution of Kenya supports their point of view. Both are correct and both are wrong.
The problem is not a legal one or a constitutional one; it is political. Kibaki and Odinga do not trust each other and from their behavior in the past 12 months, they never will. It is time Kenyans realised this basic truth and acted accordingly. It would be in our best interests to confine Raila and Kibaki, and their entourages, acolytes, brown-nosers and hangers on to the dust-bin of history. Else, the law will keep kicking us in the ass.
It is because of their mutual distrust that 'errors' like the ones contained in the IIEC law have found their way therein. If they trusted each other, it would astonish you at the speed and intellect that would be deployed to come up with a good law. As the situation stands now, all election petitions at the High Court and the Court of Appeal, are stayed until the legal tomfoolery is corrected. But do you trust those ones at risk of losing their seats? I know I don't. Not one of them will vote to amend the Constitution to ensure that the petitons are heard to their logical conclusion.