Monday, December 31, 2007

Mr. President

Much as I am as angered and disappointed as the next Kenyan that our faith in our electoral process has been shattered, I am resigned now to the fact that barring extraordinary circumstances, we have Mwai Kibaki as our president until 2012.

On the process, I am so angry and aggrieved. If we cannot have a referee who appears to be impartial then why even play the game?

Without unprecedented (in Kenya) pressure from foreign diplomats, in a couple of days this whole hullabaloo will die down. We Kenyans are a poor lot and we'll have to go back to scratching at the dirt to provide for our families. There will be residual anger and resentment for sure, but if Kenya could survive 1969 then we certainly will survive 2007.

Why do I say that we have Kibaki until 2012. Well, our constitution is clear; there are the following requirements for election as President of Kenya, and, per Kivuitu's remarks yesterday, Kibaki has met them all.

- He/she is elected as an MP.
- The winner must receive more valid votes than any of the other candidates
- In addition [the winner must] score at least 25% of the valid votes cast in the election in at least five of the eight provinces into which Kenya is divided.

Importantly, the ECK website goes on to say that the President assumes office as soon as he is declared elected by the ECK.

So what legal options does ODM have remaining?

Other than illegal actions (coup, God forbid) which I will not address here, in order to revisit the election the constitution states that the office of the President must become "vacant"

There are the following reasons for vacancy of the office.

1 - By reason of death
2 - or by reason of resignation
3 - or by reason of hearing and determination of a question whether a person has been validly elected as President
4 - or by reason of his inability by reason of physical or mental infirmity to exercise the functions of that office

1 - Kibaki, like all of us, will die one day but that may not happen before 2012.
2 - I don't see Kibaki willingly resigning, unless there is overwhelming foreign pressure to do so and call fresh elections.
3 - Well our courts are not known for swift decision making, and are also considered somewhat corrupt.
4 - Kibaki, no matter what you think of him, is not mad or incapable. If you choose to go down this path you would need to get the CJ, the Speaker and the Cabinet to work together on the determination. Sooner will a camel pass through the eye of a needle!

So, the only practical legal option is to hold our breath for 5 more years.


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