Bullshit reasons and constitutional rights

It's fascinating to watch the libertarians and bill of rights zealots twisting themselves in knots as they argue that political contestation must be tied to some reasonable and rational objective. In their world, the bill of rights does not just serve the purpose of recognising, affirming, protecting and enjoying rights and fundamental freedoms, but in order for the bill of rights to make sense, the exercise of those rights or fundamental freedoms can only make sense if there's a rationale and logical objective. In short, for example, one cannot just pick "demonstration" as the bit of Article 37 of the Constitution of Kenya as the right to exercise, but the exercise of that right must be, and only be, to present a petition to a public authority and that the petition must serve some rational and logical purpose. You can't have a bullshit reason to hold a political demonstration.

Obviously I think that position is, well, bullshit.

You cannot have a liberal constitutional democracy if the limitations on the bill of rights are limitations tied to neo-liberal and capitalist philosophies of utility, profit and economic advancement. The constitution, as someone rightfully argued, serves the people; it is not the people who serve the constitution.

What Raila Odinga attempted on the 20th March was to exercise, as fully as possible, his rights under Article 37. Sure, he "declared" the 20th March to be a public holiday. Only a moron thinks that his declaration was [a] the unauthorised exercise of State authority or [b] an unlawful attempt to establish a government otherwise than in compliance with the Constitution of Kenya. Sensible Kenyans understood that what he was doing was pressing his demands in the language that resonated with the tens of thousands of Kenyans who agree with him. Also, no one can ignore the fact that he ignored the risks associated with his maandamano; whenever he calls people out onto the streets, some of them engage in violence unprovoked. Be that as it may, Mr Odinga and the politicians who joined in his calls for maandamano had every right to exercise his rights under Article 37 even if his demands are utter bullshit and serve no reasonable or logical purpose.

We are repeatedly reminded by a highly-motivated segment of the political and economic classes that "Kenya is a capitalist society" and that political demonstrations, such as those of the 20th March, pose a risk to livelihoods and economic activity and, therefore, they must be tempered. One lawyer had the temerity to suggest that political demonstrations should last, at most, one hour and then the demonstrators should go do something meaningful, like go to work. This is the kind of bullshit that prevents Kenya from doing the work needed to build a constitutional culture.

Obviously I am not a fan of that kind of bullshit.

I don't know if Mr Odinga is on the right side of history and I don't care. I care that flimsy neo-liberal rubbish forms such a firm foundation for the watering down of the letter and spirit of the bill of rights. I care that as a consequence of such subversive reasoning, State officers see nothing wrong in actively preventing law-abiding Kenyans from exercising their constitutional rights, refuse to actively take steps to protect Kenyans' fundamental freedoms, and, instead, provoke violence as part of their strategy for winning (and losing) political arguments.

In my opinion, Mr Odinga, since at least The Handshake, continues to demonstrate why he should bow out of the political limelight. Not because his current political campaign lies on a foundation of bullshit. It does, but I don't care. Not because his hardcore supporters are blind to all reason. They are, but I don't care. Not because his core constituency is a pale shadow of what it was in 2002/2003. It is, but I don't care. It is because he is a man out of time, both with the people he would wish to rule and the ideas he should have to rule effectively. MS-DOS in a world of AI, a rotary telephone in a world of VoIP.

But no matter how over-the-hill I believe him to be, so long as he does not call for the violent overthrow of the Constitution, the State or the government, I don't care that he wants to bring his supporters to KICC every Monday and Thursday so that they can take a traffic-snarling stroll to State House. He can do that every single day for the week to his heart's content. Article 37, which a majority of adult Kenyans adopted at a referendum, affords him that right. The only, and best, way to beat Mr Odinga at his game, is to marshal the political arguments that renders his nugatory. Only good ideas can beat bad ones. Not police batons, teargas and lethal 7.62mm rifle bullets.

Mr. Odinga and the Presidents

Fifteen years ago, Raila Odinga was cheated of electoral victory. The electoral theft led to widespread violence that was ruthlessly suppressed. Many Kenyans were killed. Hundreds of thousands were displaced from their homes. If it was not for the intervention of the global community, Kenya might not have been able to put itself together again. After tense negotiations, Mwai Kibaki and Raila Odinga agreed to form a government of national unity.

Twenty years ago, or thereabouts, Raila Odinga led his party and a bunch of other into a merger with Kanu. He was appointed the Secretary-General of the merged political party. When President Moi cheated Mr. Odinga out of a fair and transparent political party nomination process to be the presidential flag bearer, he decamped again, and led his bunch of rebels into a merger with Mwai Kibaki's Democratic Party and Charity Ngilu's Social Democratic Party, among others, and formed the National Rainbow Coalition, that went on to win the 2002 general election.

Five years ago, after months of political instability that arose after the hotly-contested 2017 presidential election, Raila Odinga and Uhuru Kenyatta shook hands and decided to bury the hatchet. Initially, William Ruth, the then Deputy President, supported The Handshake but when it became clear that Uhuru Kenyatta was deterred to renege on the agreement that he would put his weight behind Mr. Ruto for the presidency, Mr. Ruto became a bitter opponent of the arrangement. When Uhuru Kenyatta and Raila Odinga initiated the BBI process to amend the constitution, Mr. Ruto secretly financed law suits to defeat the proposals in the courts. He was successful in his efforts.

Now it is barely six months since President Ruto was sworn in as Kenya's fifth president and Mr. Odinga is sniping at his heels with his programme of political rallies aimed at weakening the President's grip on his government. Trial balloons have been floated suggesting that maybe it is time for the President and Mr. Odinga to ink their own version of a political agreement along the same lines as the agreements Mr. Odinga has had with Daniel Moi, Mwai Kibaki and Uhuru Kenyatta. It is, the whispers strongly insist, the only way that the new president can turn his attention to governing and dealing with the myriads of challenges facing his government, including the precarious economic situation, the dangerous effects of the prolonged drought, the violence engulfing pastoralist areas in the North Rift, and Kenya's military engagements in Somalia and the Democratic Republic of the Congo.

The proposals for a new handshake are not as asinine as they appear; they would fall neatly into the same category as all previous Raila Odinga handshakes with Kenyan presidents. Despite his advancing age, and unkind insinuations that he is over the hill, Mr. Odinga remains the most consequential political leader in Kenya for at least three generations. Mwai Kibaki, president and all, only has two things by which we remember him: the 2007-2008 crisis and Kenya Vision 2030. Uhuru Kenyatta will be remembered for the scandals surrounding the National Youth Service, the Standard Gauge Railway and the Nairobi Expressway Project. Mr. Odinga, on the other hand, has had a hand in the 1982 attempted coup (for which he was detained for almost a decade), putting the final nail in Kanu's coffin, the rallying call in the 2002 general elections (Kibaki Tosha!) and, in one way or the other, the final push for a new constitution.

President Ruto and his acolytes would be best served by not dismissing the handshake idea out of hand. So long as Mr. Odinga can marshal tens of thousands of Kenyans, rich and poor alike, from all ethnic backgrounds, to the streets, the president cannot afford to dismiss Mr. Odinga as an old political has-been. Whether or not  it will dawn on the president that it is better for Mr. Odinga to be inside the tent pissing out depends almost entirely on whether or not he has honest advisors telling him the truth, as opposed to courtiers hell-bent on making a fast shilling. If for no reason, the president must bear in mind that three different presidents saw the wisdom of having Mr. Odinga in their governments.

It's time for us to quit Mr Odinga

There is a twinge of grief when we witness a towering man lose his so way very publicly. What we are witnessing with Mr Raila Odinga, Prime Minister, Doyen of the Opposition, indefatigable liberation fighter, political colossus and bugbear of presidents and governments, is saddening. In the immediate aftermath of the 2022 presidential election, there was a bit of public sympathy for his fifth loss. That sympathy has ebbed away since the shambolic way he prosecuted the presidential election petition. His latest gambit, admitting to have paid foreigners to compromise the IEBC computer systems in search of proof to satisfy his needs, might very well be the straw that finally breaks the camel's back.

It is one thing to refuse to accept the results of the election or the judgment of the Supreme Court. One can refuse to accept both outcomes. One might even deny the legitimacy of both outcomes. One might even mount a blistering attack in the court of public opinion against both outcomes. But in a modern democracy, one that was hard fought, it might not be in the public interest to undertake a sustained siege against the foundations of the constitutional framework a people have adopted for themselves.

What Mr Odinga and, to a large extent, what his acolytes and mouthpieces have done, is to not just deny the legitimacy of a presidential election and presidential election petition judgment, they deny the legitimacy of institutions of state that they themselves had attempted to undermine in nefarious ways. Mr Odinga appears oblivious to his efforts to undermine the presidential election, relying, as he did, on the active connivance of Sate officers who had no business campaigning for him or using public resources to do so. For him to turn around and declare that it is his electorally successful rival who misused public resources and compromised the election commission and Supreme Court, is a bit rich.

This is not to say tax the way the president is behaving is kosher. Far from it. But to expect him to not take steps to forestall a political crisis in his government is naive. That Mr Odinga and his colleagues int he minority are incapable of formulating a coherent strategy to counteract the president's overtures, to prevent the total subsuming of the legislature to the diktats of the presidency, is an indictment of Mr Odinga and his colleagues rather than proof of the president's political deviousness. Mr Odinga is so wedded to the idea that he could still be president that he has thrown all political caution to the winds and is now admitting to criminal conspiracies that in a mature democracy would have had him answering difficult questions before a magistrate.

Mr Odinga, by his behaviour, extends the hangover over the Westminster Model we abandoned over twelve years ago. It is because of his nuttiness that the idea of an office of the "Leader of the Official Opposition" is proceeding ahead in the National Assembly. Kenya's constitutional framework is no longer about the ruling party and the official opposition; it is about checks and balances among the three main arms of government: parliament, the national executive and the judiciary, with all of them being kept honest by constitutional commissions and independent offices.

But Mr Odinga is determined to paint the majority party int he colours of the ruling party if only so that he can continue to paint himself in the colours of an opposition politician. This mentality prevents parliament from playing its proper role of oversight, especially of the national executive, instead of becoming the handmaiden to the president, regardless of the fitness of the president's policies. In my opinion, the reason why the government has failed to formulate an effective famine response framework is because of Mr Odinga's intransigent grip on his identity as an opposition politician. Because of him, parliamentarians define themselves along the same line: ruling party versus opposition. And as a result, not a single member of the majority party has raised any significant query against the famine response by the national executive, leading to prolonged suffering across large swathes of the Northern Frontier.

It is time for us to quit Mr Odinga of only so that we can build the government we actually agreed to in the Constitution. The longer that he continues to hold us back, the longer we will be unable to deploy the checks and balances needed to hold presidents, their cabinets and their state agencies to accounts for their policies, programmes and projects. So long as Mr Odinga's mentality continues to undermine the role of parliament, harebrained white elephants like the Nairobi Expressway will continue to impoverish the nation.

Without trust, Mr Odinga is going nowhere

Raila Amolo Odinga is a colossus. It is immaterial that some of us think that he is over the hill, past his prime. He remains the most consequential politician and political leader this country hs experienced since his late father, Jaramogi, passed away. One can no longer wish away Mr Odinga as one could stop breathing. We can count on one hand the politicians and political leaders who have a made a genuine difference in Kenya, whether for good or for bad, and that list shall be incomplete if it does not have Mr Odinga on it.

The Supreme Court, after weighing the evidence adduced before it, determined that William Ruto was duly elected as the fifth president of Kenya. The road to this determination is not a tortuous one. Mr Odinga shook hands with Uhuru Kenyatta and buried the hatchet of the 2017 presidential election, which Mr Odinga refused to accept. Mr Kenyatta thereafter sidelined Mr Ruto, his deputy president, and embarked on a harebrained scheme to change the constitution. Mr Ruto joined hands with disgruntled Mt Kenya politicians which sustained him through four years of unfortunate treatment at the hands of his principal. When the presidential election was held, Mr Odinga was treated as the Government because of the support he received from Uhuru Kenyatta and his officials, and Mr Ruto, the sitting deputy president, was treated as the underdog, a role he played up all through.

It is common knowledge that Mr Ruto ran a well-organised presidential campaign; the discipline in his ranks was remarkable. Mr Odinga, on the other hand, never truly appeared to be the captain of his ship. First, it took him and Mr Kenyatta wasted weeks to get Mr Kalonzo Musyoka onside. Thereafter, it was never clear who was the one in charge: Mr Kenyatta or Mr Odinga. Rumours continue to swirl, that even on the day of the presidential election, Mr Odinga's team did not have a unified list of poll station observers. Indeed, things were so bad that Ms Martha Karua, Mr Odinga's running mate, could not even muster a good showing in her Gichugu, Kirinyaga, constituency. Mr Odinga alleges that rather than poor preparation and execution of plans on election day, it is Mr Ruto's campaign that subverted the will of the people by interfering with election processes, particularly the electronic transmission and tallying system, stealing votes from Mr Odinga and allocating them to Mr Ruto. The proof that Mr Odinga adduced before the Supreme Court was dismissed as mere "hot air". He has, since the judgment, maintained the righteousness of his claims and he seems, today, to have found a whistleblower willing to back his allegations.

Wahenga husema, "You will know them by the company they keep". Mr Odinga keeps some very dubious company. The positions they have adopted, and the actions they have undertaken, ostensibly in his name, have had negative externalities, as the economists say. They alienated voters by their braggadocio. They strutted around with their noses in their air safe in the knowledge that the "system", for once, was on their side. They took the voters for granted and as a result, peppered their pronouncements and announcements with condescending and pejorative language that, in effect, told us to know our place, not question the dubious use of state resources for their benefit, or the secretive relationships among and between them. While many of us are disappointed that Mr Odinga was not elected, very few of us actually sympathise with his plight, never mind the crowds that still flock to his rallies.

Mr Odinga is a colossus. But that is meaningless if he surrounds himself with political and intellectual pygmies, places his trust in slothful chancers and scallywags, and embarks on change-the-constitution adventures filled with evil designs for the people he seeks to govern. It may very well turn out that the whistleblower has spoken the truth and that his evidence is verifiable. But it doesn't matter so long as Mr Odinga's trust deficit with the vast majority of Kenyas remains so wide. Without us, the people, his claims are not worth more than a bucket of warm spit.

Punda amechoka

On the 27th August of 2010, after more than twenty years of agitation, state-sponsored violence, political chicanery and constitutional lawfare, Kenya promulgated a new constitution. From the Ufungamano House Initiative, to the Ghai Commission to the Committee of Experts, Kenyans were determined to remake the constitutional framework to recognise and respect the will of the people. It was not our wish to repackage an avaricious political class with new titles and new offices. It is for this reason that we must acknowledge the tragic out-of-time-ness of Raila Odinga's determined push for political relevance by seeking a new government sinecure in the form of Office of the Leader of the Official Opposition courtesy of a BBI-like constitutional amendment.

Uhuru Kenyatta and Raila Odinga attempted to pull the wool over Kenyans' eyes with the Building Bridges Initiative that suffered catastrophic blows from the Judiciary. Even with the weak-toast face-saving by the Supreme Court, BBI was not supported, could not be supported, by the people. Its proposals should have received far better critical review, but because of the underhanded way that the entire enterprise was undertaken, only the politicians who stood to gain invested time, energy and scarce public resources to achieving the objects of BBI, including the creation of new offices designed, it seemed, solely to accommodate unsuccessful election candidates.

Mr Odinga lost the 2022 general election by repeating the same mistakes that were made when prosecuting the BBI programmes. But, I fear, he has not taken any lessons from his recent string of losses. He is banking on Kenyans' nostalgic fondness for his political battles of the past, especially the central role he played in agitating for a new constitution. Many Kenyans hold him in awe for what he did on Saba Saba and though they found it distasteful later on, they were appreciative of the rapprochement with Baba Moi that permitted him to merge his party with Kanu and his taking a cabinet position in government. His stint as Mwai Kibaki's Prime Minister was useful in dealing with the political reality of the presidential election that was stolen from him. When he attempted a similar gambit via the handshake with Uhuru Kenyatta, he failed and failed badly.

The ground has shifted significantly since 2008. There are fewer and fewer Kenyans who are willing to accommodate bloat in the senior ranks of the Government. Not in the middle of an unemployment crisis and famine. The Kenyans who were so optimistic in January 2003 have been browbeaten by relentless stories of senior politicians making out like bandits while the people they govern subsist on empty promises of development, free public services and social security for all. Lightning does not strike twice n a bottle and it is why BBI was fiasco and whatever accommodations Mr Odinga attempts with President Ruth will suffer the same ignominious fate.

Only politicians want a Prime Minister. Most Kenyans don't. Certainly, young Kenyans are only concerned about the savage cost of living. They want jobs that guarantee a comfortable life. They want social services that grant them the opportunity to found their own families and watch their children thrive and flourish. They are not interested in sustaining the exorbitant lifestyles of over-the-hill failed politicians. In the words of Ekuru Aukot, "Punda amechoka."