New presidential poll the only way to ensure peace and justice

Please read the following commentary by Cabral Pinto,
http://www.nationmedia.com/dailynation/nmgcontententry.asp?category_id=25&newsid=113973

COMMENTARY

New presidential poll the only way to ensure peace and justice

Story by CABRAL PINTO
Publication Date: 1/5/2008
Tragically, the Electoral Commission of Kenya (ECK) finally argued that it had no jurisdiction to re-tally presidential votes in constituencies where irregularities had been proven when it gave politicians a chance to do so in its supposed auditing of votes cast. This evidence of verification is available.

The commission argued that although the claims of irregularities were “weighty”, the matter needed to be handled by the courts. Justice required that the ECK do what was necessary to guarantee peace.

Having started the vote audit and armed with the evidence of irregularities, the commission should have completed the re-tallying of all the 210 constituencies and made the necessary corrections. It is even more painful now when the country is burning that we hear irresponsible statements by four commissioners and chairman Samuel Kivuitu. If he did not know whether Mr Mwai Kibaki was legitimately elected president, why did ECK not do its job?

THE BLOOD OF THOSE WHO HAVE died because of ECK’s abdication of its duty will surely be on its hands. Property that has been destroyed, the culture of fear that rules in Kenya, and the country’s teeter-tottering on the precipice of civil strife should squarely be placed at the feet of a partisan, incompetent and unpatriotic commission.

Calls for peace should not ignore calls of justice. The right to vote in a peaceful, free and fair election is ultimately meaningless if the results of that election are not just, fair and corruption-free. The right to vote is the right to peace. Calling for peace without calling for justice sets a dangerous political precedent that those alleged to have stolen elections are guaranteed peace to rule!

It is encouraging to know that secular and religious civil societies, the private sector and the international community are seized by this issue. What is critical is that all must speak with one voice, calling for peace and justice.

Addressing peace and justice requires that President Kibaki be told, in no uncertain terms, that his legal and moral legitimacy depends on addressing the issue at stake — the integrity of the election. If he wants legal and moral legitimacy to rule, he must give something back to Kenyans.

He must agree to the setting up of a committee of women and men of integrity – Kenyans, East Africans, Africans and foreigners – agreed upon by his government and ODM, and other political parties, to carry out a comprehensive re-tallying of the presidential electoral votes in all the 210 constituencies.

Since both PNU and ODM have made allegations of vote rigging, there will be no peace until the claims on both sides are investigated and resolved. And ultimately, the President must undertake to hand over power if the findings reveal that he was not fairly elected. The exercise would be futile if this commitment is not undertaken.

Is taking the dispute to court an option for peace and justice to reign? Kenyan courts have never carved out a niche for themselves as impartial arbiters in political disputes.

In petitions filed against a ruling president, courts have never been seen to be impartial and just. Kenyans who voted for ODM will not expect an election court, set up by a chief justice who rushed to State House to swear in Mr Kibaki as the President, as the forum where transparent, open and public re-tallying of votes will take place. Such a suggestion is similar to trusting Mr Kivuitu and his team to do the re-tallying justly after ECK has shown itself as partisan. This is why Mr Kibaki and ODM have to go outside these traditional institutions to seek a lasting solution to this political dispute.

The so-called Kalonzo initiative is as hypocritical as it is opportunistic. ODM-Kenya’s Kalonzo Musyoka now wants to tell Kenyans that he is an honest broker in the dispute. If he was, he would have supported the re-tallying of votes at the KICC, Nairobi. Those who heard his arguments and those of his secretary-general, Mr Mutula Kilonzo, know that he supported what the ECK ultimately decided.
The law that lawyers emphasised that the declaration of the results by ECK is final does not always guarantee peace and justice if the law is seen by the people themselves to be unjust, immoral and corrupt.

Is re-tallying no longer an option as some people are arguing? Certainly, it is the only option. ECK has the documentation. The political parties have the documentation. The presiding officers are not dead. The agents of the political parties are available. The evidence, therefore, is still available to conduct the re-tallying.

IF THIS CANNOT RESOLVE THIS grave issue, the other alternative will be to hold a fresh presidential election supervised by African and international structures. ECK cannot surely be trusted to oversee a new presidential election because is tarnished to the core of its existence. Both ODM and PNU will then have to agree to transitional ground rules of ruling Kenya pending the presidential election.

These proposals should be put to President Kibaki and ODM’s Raila Odinga. It is time for serious dialogue to seek a political solution to this political dispute. The re-tallying should also unearth the network that has been responsible for the irregularities. These irregularities do not appear to be honest, human arithmetical errors. They are the result of a conspiracy to subvert the fundamental values of a peaceful, free and fair election. There will be no peace until the network is punished and justice is served.