NASA must reflect on whether an illegality will usher in electoral justice

Four men were members of the Speluncean Society, an organisation of amateurs who explored caves. In May 4299, they were in a position far from the entrance to the cave when a landslide occurred. The entrance of the cave was blocked by heavy boulders and the men were unable to leave. They settled near the obstructed entrance of the cave to wait for a rescue party.

They had no food and water. Twenty three days later, one of them, Roger Whetmore, suggested that they choose one amongst themselves to kill and eat in order to survive. He also suggested that they use a pair of dice that he had with him to cast lots to determine which one of them would be sacrificed to save the other three. The other three agreed to the plan.

However, before they rolled the pair of dice, Whetmore changed his mind and decided not to participate. The other three overruled him, proceeded to cast dice, with one of the three men playing on his behalf. Roger Whetmore lost. His fellow explorers killed and ate him. When the rescue team arrived only three men were found. The survivors were charged with murder. The three explorers were found guilty and sentenced to hang.

Threatens to cannibalise

The course proposed by NASA, to swear in Raila Odinga and Kalonzo Musyoka as president and deputy president on January 30, 2018, is unconstitutional. Article 3 of the Constitution provides that every person has an obligation to respect, uphold and defend the Constitution. It also provides that any attempt to form a government outside the provisions of the Constitution is unlawful.  By proposing to form a government in exile, like the exiled leader of the secessionist movement in Catalonia has, NASA is aware that their proposed course of action threatens to cannibalise our Constitution, the nation and its people.

When the three explorers appealed to the Supreme Court of Newgarth, the judges had divergent views. The Chief Justice found that they had breached the law that prohibited willfully taking the life of another but proposed clemency because of the circumstances under which the killing occurred.

Another justice, Judge Foster, held that to convict the three for murder would put the legal system into shame.  In the circumstances the four explorers found themselves the law was suspended and replaced by the law of nature. The law was like the air we breathe and its purpose was to facilitate and improve men’s co-existence and regulate with fairness and equity the relations of their life in common. In the extraordinary situation the four explorers found themselves, where life could only become possible by the taking of life, the foundation of the Newgarth legal system lost meaning and force.

His conclusion, in proposing the acquittal of the three men, was that they found themselves not in a state of civil society but in a state of nature.

A democracy is a government by the people, of the people and for the people. Electoral justice cannot be wished away. Any democracy that does not respect the principle of “one man one vote,” is ultimately bound to fail.

Kenya has not reached the state of nature that the four Speluncean explorers found themselves. There remains a Constitution whose crevices are yet to be fully explored and a significant population that prefers to be led by a government constituted within the hems of the law. 

One of the mechanisms suitable for electoral justice is a popular referendum, like the once-hyped Okoa Kenya movement. The other is the dissolution of Parliament which as constituted is unconstitutional. There are many others.

Raila Odinga, a democrat, and Kalonzo Musyoka, an advocate of many years standing, must pause and reflect on whether the birth pangs of a constitutional injustice will lead to the birth of electoral justice.

- Kethi D Kilonzo is an Advocate of the High Court of Kenya. [email protected]