CAN ODM GET JUSTICE IN COURT?

ODM has repeated often, mostly through it’s leader Raila Odinga, that for various reasons, they will never go to court to present their election grievances. Let us examine some of the reasons. Time-Bar.( ODM didn’t mention it.) It has been reported in the media that ODM are now time-barred because the statutory period to file a petition has lapsed. This does not mean much. Under Sec 3A of the Civil Procedure Act, plus several other legal provisions, they can apply for and receive enlargement of time to file the suit. This happens all the time in our courts. Delays In Court. Once a court registers a case, the hearing date is allocated based on the available dates for the court, and counsel as well. Cases are very frequently heard on priority basis, for many reasons, e.g where a party may be leaving the country, or where evidence may be damaged, or where the matter is weighty and justice demands expedience. This case can be allocated consecutive, uninterrupted days. Most times, cases are adjourned due to lawyers. This can easily be avoided here. In any event, if ODM can present their evidence to Koffi in a day or two, how much longer do they need in court? Incompetent/ Biased Courts. This matter was first raised by a section of LSK, and has since become a Mantra repeated by ODM. Firstly, if LSK has no confidence in the courts, it is fraudulent of LSK to be in existence, the members charging clients for representation in the same courts. LSK should have made proposals to solve the legal hurdles in a petition, in the way that I am now doing, rather than telling Kenyans ‘It cannot be done.’ This is the same LSK whose members have taken up all the election petitions that have been filed. I also want to ask; When did LSK discover that our courts cannot adjudicate a Presidential election? After the results were announced? Why have they never said anything for the last five years, and throughout the campaign, and proposed solutions? This is an abdication of the LSK mandate and the vocal Chairman owes Kenyans an answer. As for ODM, there are over 20 election petitions filed in court so far, the majority being by ODM losers. Why are the courts good enough for this? It was the same ODM that took a Minister to court over the Safaricom IPO. In addition, we must remember that even in the US, Judges are appointed by the Executive, and also have biases. They are only human, and in 2000 the US Supreme Court read a ruling with a 5-4 majority vote in favour of President Bush. The ruling was along party lines but was still accepted and respected. Whatever the shortcoming, this is the law universally, and ODM can always hire outside counsel and invite observers to ensure justice is seen to be done. The fact is that Kenya’s judiciary is far from a Kangaroo court and the Government loses cases often. The hotly disputed Nigerian election has been referred to court. Why not us? We cannot all mindlessly accept that this particular dispute should be kept out of court. The rest of the world does not have perfect courts and they still use them. International Provisions. The UN Charter, US Constitution, UK customs and practice, The Commonwealth tenets, and EVERY Constitution in Africa, provides for courts as the means to solve disputes, including Presidential elections. Are we saying that Kenya is a unique

case that should experiment in a new, novel way? I now of NO other country where an election dispute was resolved in the manner we are trying to do, by a discussion of elders.