Can the courts overthrow the people?

Guest blog post

By Eric Ng’eno

Let’s begin with this story from the ‘Daily Nation’ of Monday 11th September 2017 .

NASA plans to derail, distract and otherwise traumatize and occupy IEBC with relentless court action, ostensibly related to accountability over the nullified election. The nullification and reasons for it set the stage for NASA’s scorched-earth legal raid of the hapless commission.

Contempt of court, criminal prosecution, complementary international action in France, the works.

It is a strategy to realize what NASA have wanted all along: if IEBC is sufficiently hamstrung with negative injunctions, compromised strategic personnel, credibility and legitimacy crisis, there will be no election. Another action to declare as much is probably very much on the cards.

Paul Mwangi ‘s highly forthcoming quotes indicate that NASA and certain elements of the judiciary are in frenzied tandem play to realize certain outcomes. Chebukati’s “leaked” show-cause memo to Chiloba is also guidance on the ratio decidendi for the Supreme Court majority decision. It is also the core of NASA electoral playbook for 2017 and places all its strategic heavy lifting within the judicial realm. The role of the courts in the 2017 political engagement is much larger than is plainly apparent at the moment. It certainly goes far beyond elections.

So, one may ask of it all: to what end?

Well, one already knows that NASA’s foundational commitment is not about democratic competition as a legitimate means of participation and access to political power. Rather, the commitment is to the acquisition of power by any means necessary. If the military was available it would do. If electoral victory was feasible that would be it. The only institution that has so far proven amenable and dependable is our courts. That’s where capture has been completed and where paralysis will be staged.

To connect with ODM raw thinking, it’s useful to listen carefully to the ‘other Muthama’- Timothy Bosire. Bosire, fresh from a humiliating defeat remains ODM treasurer.

In ‘The Standard’ of  the same day (Monday 11th September 2017), he asserts that it’s time to form a Nusu Mkate government awaiting credible polls. No doubt all the petitions, submissions and decisions paving the way for this sort of outcome have been conceptualized.

Paul Mwangi outlines the alpha. Timothy Bosire sets out the omega. Watch the action in the courts carefully.

Let’s play.

Ng’eno is the Senior Director, Speech Writing and Messaging, The Presidency, Government of Kenya.