STEP BACK FROM THE BRINK : AN OPEN LETTER TO PRESIDENT UHURU KENYATTA AND RT. HON RAILA ODINGA
Dear Mr. President and Rt. Hon. Odinga,
The Kenyan Section of the International Commission of Jurists (ICJ Kenya) wishes
to directly raise concern with Your Excellency President Uhuru Kenyatta and Your
Excellency Rt. Hon. Raila Odinga on the stand-off around the proposed fresh
presidential election to be held on the 26th of October 2017.
The 26th of October 2017 is slowly yet surely approaching. The Independent
Electoral and Boundaries Commission (IEBC) has re-stated that it is ready to hold
the election on this date. Paradoxically even as it asserts this, Commissioner Dr.
Roselyn Akombe has not only resigned from office but fled the country fearing for her
life. Her family too had earlier fled the country following incessant threats which have
not been investigated. Dr. Akombe’s resignation letter casts doubt on the ability of
the IEBC to hold a free, fair and credible election next week.
In statement to the nation shortly after Dr. Akombe’s resignation, the Chairman of the
IEBC Wafula Chebukati, partly agrees with this assertion citing the hostile political
environment as one key reason free and fair elections might not be possible. Both
commissioners also cite hostilities and divisions within the Commission. That a
majority of commissioners have a pre-disposed position during Commission plenary
meetings is a clear indication that the Commission as a whole has lost its
independence. Dr. Akombe, who was Chairperson of the Elections Operations
Committee – a critical IEBC organ - had this to say:
The commission has become party to the current crisis. They are keen to have
elections in spite of the fact that IEBC staff and Kenyans in affected counties lives
might be lost.
The Chairman had this to say:
That the country faces a dilemma between operational preparedness and the
political environment for credible elections.
The Chairman states in clear terms that there does not exist a conducive
environment in which to hold free and fair elections. The Chairman also insinuates that Raila Odinga’s withdrawal casts doubt as to whether President Uhuru’s eventual
win will be viewed as legitimate and unify the country.
The political, economic and social stability of Kenya beyond the 26th of October is in
serious doubt. We have already witnessed hundreds of General Service Unit police
officers allegedly being deployed to NASA strongholds with the idea of securing the
presidential election. We are also aware that NASA, through you, Rt. Hon. Odinga,
has called for nationwide protests on the 26th of October 2017. We are equally aware
that you, Mr. President have vowed that the election will go on even in those
As you, our political leaders, continue with this game of brinkmanship, an
increasingly worried and anxious nation ponders, “What happens when an
unstoppable force encounters an immovable obstacle?” We do not have an answer,
but from past experience, we know that innocent people suffer.
Given the above and recalling that Kenya has already lost tens of lives, including
children, at the hands of police, ICJ Kenya wishes to pose to you Mr. President and
you Hon. Odinga the following questions:
Is this not an opportune time to step back from the brink and reflect on whether the
26th of October 2017 will yield the desired results that the nation you lead
desperately hopes for?
Are free and fair elections possible in an environment that is filled with fear, violence,
intimidation and improper influence?
Are free and fair elections possible for those voters who wish to participate yet reside
in opposition strongholds, given the hostile political climate they face? Will their
safety be guaranteed after they vote, given the hostile political environment? Will
they not be subjected to profiling and forceful displacement from the hostile
communities that identify with the grave legitimate issues raised by you Hon.
Will we not witness revenge attacks targeting members of other communities
residing in Jubilee-dominated areas as we witnessed in the 2007 post election
Will we, therefore, have any semblance of a united country after the 26th of October
2017? Or will we be a nation at war with itself?
Recalling that the police were responsible for more than 400 lives lost during the post-election violence of 2007-8, will we not see more young lives lost during
protests at the hands of an even more vicious and unaccountable police force? Have
we not lost enough lives and suffered sufficient injuries to warrant your realization
that this country faces a grave risk of being lost on your watch?
Have we really learnt lessons from the 2007-8 post-election violence that political
compromise is most critical before rather than after a flawed election in order to safe
guard life and limb? To put it more graphically, will you have the presence of mind to
reach a compromise now and sign a document with pen and ink, or are you
determined to wait and sign the said document with pens dripping with the blood of
In view of the forgoing, understanding that Kenya is constitutionally obligated to hold
a fresh presidential election within 60 days of the Supreme Court decision of 1st
September 2017, but given the fact that we do not believe a conducive environment
currently exists to hold the fresh presidential election on 26th of October 2017 and
that innocent voters’ lives will be lost if we proceed in this manner, we the ICJ Kenya
advise as follows:
- That the Chairman of the IEBC, as National Returning Officer, urgently return
to the Supreme Court and seek further instructions on how to proceed, given
the hostile and volatile political environment, the resignation of a key member
of the Commission who has fled the country fearing for her life, the fact that a
majority of IEBC Commissioners are allegedly operating under duress and the
attacks on IEBC Staff who now fear for their lives if they are to proceed with
the court order as currently issued.
- That the IEBC chair pray the Supreme Court to vacate the orders issued on
1st September 2017 and issue further appropriate orders following
submissions from all parties to ensure free, fair, credible and peaceful
elections in a conducive environment, which does not exist at this time.
- That you, Mr. President Kenyatta and you, Hon. Odinga use this moment to
broker a political solution and urgently consider the need to heal the divisions
that are threatening to tear this country apart. For, even with an election
victory guaranteed on the 26th of October 2017 in the environment that exists
at present, you, Mr. President will be unable to be accepted as Head of State
in large parts of the country and therefore will be unable to fulfill the
constitutional demands of your role which include being a symbol of national
unity. The inability to play this critical role means that the presidency will
become a divisive institution and risk ultimately losing its legitimacy.
- In our considered opinion, immediate political solutions to the crisis a. In the short term, an agreement be urgently sought on both sides on
how to ensure that a conducive peaceable political environment is
restored within the shortest time possible to enable the country to carry
out a free, fair, credible and peaceful fresh presidential election. This is
not a call for a coalition, caretaker or transitional government because
for a government to enjoy legitimacy, it must be elected by the Kenyan
people in a free, fair, credible and peaceful election. It is, rather, a
common-sense proposal to enable our country to step back from the
brink of the precipice.
b. In the medium term, a solution be sought, including the possible
establishment of a Peoples Conference led by a decision-making organ
whose mandate will include allowing you, Mr. President, and you, Hon.
Raila, and other stakeholders to explore and find just and peaceful
ways out of the current political impasse and address its root causes
through constitutional means.
- That in the unfortunate event that our counsel falls on deaf ears and the
planned fresh presidential election does go ahead on the 26th of October
2017, we urge Kenyans to vote peacefully and those who wish to protest to do
so peacefully and not interfere with voters wishing to exercise their
constitutional right to vote.
In conclusion, Mr. President and Rt. Hon. Raila, we take this opportunity to remind
you that our country faces great peril at this moment and in the coming days. But
times of great peril can also be times of great opportunity for any nation. The key
variable is whether its leaders are content to remain mere politicians pursuing short-term
partisan interests or they summon up the courage to rise up and answer the call
of the moment and make critical decisions that will save their republic, guarantee
them a place in the hearts of their people, and etch their name permanently in the
history of their nation. That time, Your Excellencies, in now.
Chairman, International Commission of Jurists – Kenya