Talks have been going on. These have serious implications for our nation and its future. The talks focus on national concerns. The talks also focus on individuals.
The ‘personal’ issues figure Azimio la Umoja coalition leader Raila Odinga. The ODM leader represents not himself or even his family’s legacy in the national tapestry. He represents millions of Kenyans who have consistently voted for him over four national elections over fifteen years.
They do not just admire him as their individual leader. They share deeply his political goals for the country. They follow him because he is ready to suffer what they suffer when they question something they consider oppressive or unconstitutional.
They follow him because he has many times demonstrated the sharing of that suffering with the people. As has his wife, Ida Odinga, just like the wives of millions who have suffered. He has done this over several decades, over three periods of detention, over exile, over other dangers. And yet kept the beliefs the people share with him.
Those millions are rightly concerned that Kenya may return to the dark days the country fought against for 20 years. This is a fear that continues because the responses to their questions about the process are not answered with candid disclosures of electoral information.
Kenyans are entitled to that information and to the steps that confirm or disprove doubts. This constitutional provision is independent of the Supreme Court and of any verdict it has given. The Constitution in Article 35 provides: “Every citizen has the right of access to (a) information held by the State; and (b) held by another person and required for the exercise or protection of any right or fundamental protection.”
Both State actors and IEBC are State Officers and are bound by the Constitution and all its provisions. So, this is a right that all Kenyans can invoke against them. When the government or a non-functioning IEBC does not give that access, it is an undemocratic response. Suspicion continues.
Even without any request the government is under the same very important duty. This duty is set out in Article 35(3): “The State shall publish and publicise any important information affecting the nation.” The contents of the IEBC Server are that “important information”.
And it affects the nation. What information could be more important and affect the nation more, than information which can instantly set at rest doubts and disputes about the reliability of the figures used to announce a new Head of State. The word the Constitution uses for this duty is the mandatory word ‘shall’. There is no discretion in the State to refuse to perform this duty. Or to ignore Article 35(3).
It is there precisely to prevent the hiding of the methods and evidence that are at any time relied on to arrive at any ‘result’ or ‘decision’. This constitutional duty is not connected to anything Raila, or his followers or the demonstrations demand.
It arises solely, and independently, from the Constitution. Yet the State refuses to perform that duty and the State disobeys the Constitution. No one should be surprised that the suspicion has only risen higher, the longer the Government fails in its duty and keeps disobeying Article 35(3).
But the Constitution does not end there. It also gives a remedy. Article 35(2) provides: “Every person has the right to the correction or deletion of untrue or misleading information that affects the person.”
If the government is refusing to give the information because such information might, be in the server and it does not want any person or political party to be in a position to demand “the correction or the deletion of untrue or misleading information that is affecting the nation,” then the suspicion rises to even greater heights.
It also immediately raises the presumption that there is something to hide. Because in law, if a party has evidence in its possession that is relevant to the outcome, but withholds it and refuses to give it to the Court, (and in this case to the Court of the People), a presumption arises that the evidence it is withholding is against itself and in favour of its opponent.
And then the suspicion already raised to greater heights, rises higher still to a pitch.
It can be seen that the Constitution makes even the talks affecting the individual, also to be talks affecting the nation. And an event in which we all have to take the highest interest. The Constitution is the manifesto of the nation.
The writer is a senior counsel