Where were you when it happened?
I was sitting in the office, internet crapping out on me, trying to catch up on as much as I could of the Advocate’s oral submissions. The attorney general had been reliably eloquent and then I had watched Mr Neworjee and been surprised at his charisma.
Then it was 11:15 or thereabouts and the judges filed into the courtroom. Black on red robes. White tabs and the Lady Justices wearing these weird frilly things around their necks. I saw those and got irritated again. Why aren’t all the Justices wearing similar tabs?
Here’s a fun fact about those tabs (the things that they wear around their necks instead of ties, sticking out like two ivory pillars) they are meant to represent the ten commandments. Funny thing about the ten commandments, Moses went up to see God and they sat and chatted. God then brought himself low to write on the tablets of stone. For the first time since creation the physical form of the Lord made itself felt on the face of the earth. Contained in those tabs was the word of God, the literal word of God. Then Moses got angry and hurled the Law of God at the idol of humanity. In that instant the word of God was lost to us forever. Justice, the seat of God, disappeared from humanity on that night. Yes, we got other commandments but they weren’t touched by the divine. We have other laws but they are not the law of God. No matter how you read that story, literal or allegory or fable, there is a hint in there that humanity drove a wedge between itself and its God by choosing other things, the idols of power and greed drove us away from the consideration of justice and left us cold. The efforts of the best of us to bridge the divide were in vain due to our human faults. And now we try to reach up to those heights but can’t. The world has no justice, only laws.
And back on earth the Chief Justice announced that there were dissents to the judgement. Right now, as I write this I can’t remember what happened, were the dissents read first? Did it go directly to the Chief Justice reading the majority finding? Barely a week later it starts to turn foggy. What I do remember is that once the CJ read the first limb of the determination and said that our Electoral Commission had failed in its duty towards Kenyans the internet stopped. There was nothing I could do for it. Here we were in this historic moment and I couldn’t watch it anymore. All I was receiving were whatsapp messages summarising what was happening. The texts said we were going to have a fresh election, that the last thing we did was a dry run, a trial, a chance for IEBC to work out the kinks in their system and that we would try again.
I was glued to my phone. Where were you when it happened?
A part of me was going to be happy no matter what. One of the little children being guarded by my soul had broken out and was dancing all over my table as soon as I heard that there were going to be two dissents. Two dissents!!!! Before I ever knew how this was going I heard about those dissents and reached for the rainbows. Not one but two!
A dissent is basically a differing opinion. When a court sits with more than two judges democracy is established. Let the majority have its way but let the minority have its say. These things are usually wonderful. Right there in the judgement that will be released in 2 weeks will be the minority’s say. The minority will write pages and pages backed up by evidence, based in law, laced with logic eviscerating their companions. Saying how could you people have got it so wrong? Who do you think you are to invalidate this election? Don’t you know people voted? Don’t you know they queued? Don’t you know they chose? And where do you get off telling them that they didn’t? Right now I can’t even believe I share this bench with you, I am so appalled at this thing you did, at these things you decided. It’s just my vast respect for you and the law holding me back. But you know what, the whole world is going to know just how wrong I think you are.
Right in there and I can’t wait to read this. I was so happy about the two dissenting from upholding the election (as I thought was happening) so, so happy. So when I heard the election had been overturned and that the dissent was a decision to uphold it, that little boy did a jig. He turned into marble and gold, walked into the courtyard of the Supreme Court and stood there fish over his shoulder, turtles spitting up at him, proudly taking a piss.
Engineers its like someone made some new cement, musicians there’s a new instrument, businessmen there is an untapped niche market at the bottom of the ocean, teachers there’s this new Montessori method, bankers there are new….
What I’m saying, for a lawyer this was huge. The tome they drop on us will change the face of law for years, decades. In every court of law in the commonwealth if ever a presidential election is challenged the judges there will be told, “And the Kenyan Supreme Court in Raila Odinga v. IEBC part 2 held that…”
All I can do is imagine what’s in there. I’ll save a review for when it’s actually out.
Another golden ray of sunshine plays on my skin. I like to write and I love a good story. Lots of people try but nobody touches God. Life is stranger than fiction. Much, much stranger. From the mists of history we have those two great men of Kenya as it hurtled towards independence. Jomo Kenyatta ruminating in a prison cell somewhere as Jaramogi Odingais offered the premiership. Like caeser he turns it down, he says that only one man can unite our country, and you mutherfuckers have him locked up. Then that one man is no longer locked up. One midnight the flag of the imperialists is rolled down and ours sent to fly in the wind. The two men turn to the business of governing the country and soon they split apart. The very first opposition party is formed by Jaramogi and multi-partyism is outlawed. In between all this they somehow manage to have families. They somehow manage to pass on a certain something to their sons, neither of whom are the first to be born incidentally and neither of whom is sullied with a name honouring a god not of their ancestors.
In the fullness of time history repeats itself and we have a President Kenyatta and opposition leader Odinga. They gear up for what we all hoped was their last fight. They throw everything at it. The dynasties we have been hearing about for all the life of our country are having what we think is the last great showdown. It’s a plot right out of Game of Thrones. Every thing down to the reality that you can’t beat an incumbent. Results are announced and it’s the Kenyatta who is declared winner.
That weekend an old man wakes up in Nyanza. Age has addled his mind and he’s not sure when it is. He can hear screams outside and he knows blood is being shed.
“Ango ma timore?” what’s happening.
“Gi nego wa” they’re killing us.
“Jo Kenyatta.” Kenyatta’s people.
“Gi dwar ango” what do they want?
“Gi dwar wa were gi Odinga.” They want us to stop supporting Odinga.
And the old man wonders, if it’s still 1969 why do I feel so weak?*
Then the court battle. In the Lord of the Rings, the hobbits make it home after destroying ultimate evil to deal with ordinary evil. The scouring of the shire shows that there is no end to the fights we fight. It stops and it starts. It cools and it heats. Yet the stakes don’t always feel as high. The stakes didn’t feel as high. I watched it to learn how to conduct myself in court. I watched it sure that no court turns over a presidential petition. We all did. We all knew there was only one outcome.
Instead of that one outcome we got the election overturned. Narratively this is one of those twists in the tale that stretch it’s credulity just a little too much. Do there even exist movies or books about courts overturning presidential petitions? There are movies where all the action is over and the protagonist is going home when out of nowhere a car hits her. This is what happened. A car came bounding out of the night and hit everyone.
“Something is happening here but you don’t know what it is, do you Mr. Jones?”- Bob Dylan
And the stage is set. It is cleared of other contenders. All other contenders. One last dust up. The boxers at either end of the ring are both tired, they’ve both played dirty, they are both hated, they are both loved. Their families have thrown themselves at each other over and over and over again. The referee has been reminded that if he wants to favour one of the contestants he shouldn’t be so fucking obvious. The judges order a rematch, the bell rings and they are off.
How it ends nobody knows, they have both planted let’s see who sows.
Will it be good for the country what we are doing now? I hope so. In the coming weeks we are going to snipe at each other, we are going to claw, we are going to try to draw blood. We will take that blood and put a line in the road. The story accompanying the Kenyattas and the Odingas is the story of the Kikuyus and the Luos. A story of a brotherhood gone sour. A story of two cultures so diametrically opposed and yet having something in them that calls to the other. The blood of Abel called to Cain as much as his sacrifice did.
We are preparing to spew so much hate at each other. Understanding will be difficult to achieve. That bright red line is set for a while. I remember thinking at the end of the last election cycle (the just concluded County and Legislative elections) that you could call it a good one if you hadn’t lost any friends. Yeah.
People are going to lose friends. We will look at each other and be unable to understand how someone so reasonable could say that, could support that. When this is run down the rift between these two peoples will be a gulf. After that we will heal, after that maybe we will find a way back to love. for now if you are Kikuyu, if you are Luo get ready to hear the worst things about your brother get ready to see the worst forwards about your sister. Get ready for your family, your friends, your self to push you to hate and enmity. Get ready and resist as much as you can. It will be bad this time.
Luckily I think the violence we will do each other will only be psychic and not physical. We aren’t heading to an election, not really, we are heading to a referendum. From the last two referendums we had I trust Kenyans in this particular exercise of democracy. I trust it will go well, it will end well, and that half of the country will be so heartbreakingly sad.
The other 40 tribes, I hope we can get out of the way of your country after this. I hope we both realise that for the good of the country national leadership cannot continue to be tainted by the memories of what we did to each other. I hope we are going to be strong enough to accept that. If not, well the history of the country contains this little nugget about KADU being formed to fight the tyranny of numbers represented by the membership of KANU, the Kikuyu and the Luo. The Kalenjin dark-horsed their way out of that early coalition. Quite unfortunately no matter what we do we have another 5 years of KANU. After that, I really hope that we can be led by a person who does not carry the baggage us two carry. Those guys who formed KADU were right. This story of the Luos and the Kikuyus, this story of the Kenyattas and the Odingas it’s not good for our country. It got the best last chapter it ever could. And I really hope that’s it, done and dusted. There isn’t going to be real unity in this country under the leadership of either of us. That is a sad assessment of the next five years but at least we get a beautiful curtain to fall over everything.
Unless I’m wrong in this assessment. Unless my countrymen are better people than I give them credit for. Unless some light of empathy and understanding falls on our path and we can at least understand each other’s choices even if we never agree on them. The sooner this happens the faster we heal. After we heal we will be stronger as a country. We will have at our back a judiciary we can trust, an electoral commission that is chastened, an executive that realises it’s power is not absolute but subject to the will of the people. The will of the people as expressed at the ballot. The will of the people that is expressed in our constitution. It’s a living document and unlike the vote does not stop at anytime. What we said we wanted when we voted for it continues to be said. it is said to all and we’ll remember that, we’ll remember that and feel powerful. After we heal. So let’s start healing.