The Prime Minister acquiesced in the President's rush to short-circuit due process in a double-edged, silent, but ill-advised war -- a war against the Hague's ICC (via a gullible, bird-of-a-feather, African Union and, wishfully, the UN Security Council itself) and a war of his own succession (in which, as was clear to any adult, Raila was to be the biggest loser).
The PM had hoped that, sitting just the two of them, they would cut the cake into two even-handed parts. Bad idea. That is not Kibaki's style. The PM should have known that from the flawed February 2008 power-sharing deal, which cost him a lot of erstwhile friends, which continues to haunt him to this day, and which, ironically, PNU has been increasingly turning to its unprincipled advantage in the ever-shifting coalition landscape. The two "Princials" did consult, but obviously did not reach a consensus. Raila pulled away. The President, who appears hostage to the Ocampo Six chose to press on (needlessly, if you forget the O6)with his list.
Despite threats, Speaker Marende has done the right thing by urging the President and Prime Minister to do things right. He has asserted:
Consultations are not made if the House receives the list on which there is open disagreement between the President and the Prime Minister. As such, it is unconstitutional and the unconstitutionality cannot be cured by this House.
Worryingly, there is no guarantee that the PM would himself have done the right thing, had he been in President Kibaki's shoes these last 30 days or so. It is just that it was Kibaki's move to make, and in the eyes of many, it seems, the President made a blatant KKK move. If the CJ couldn't be his "preferred choice" (a Justice Kariuki?), then better a middle-tier Kenyan Indian (Judge Alnasir Visram) any day than someone more senior who happens to be from Nyanza -- or another middle-tier Judge from "Western", or even Mungatana's Pokomo group, if you like.
So it seems like Raila's voctory; but the victory, if it is, is pyrrhic. The toxic level in Kenya's political landscape continues to rise, as we approach 2012. The ICC and Ocampo clearly remain our best safeguard against our collective, suicidal, "darker side" as a nation. Anyone who does not see the blood-letting that is to come with the ICC taken out of the 2012 succession equation, has lost the power to reason coherently -- and lost touch even with common sense.
When Marende referred the Kibaki list to two House Committees, some ten days ago, he was roundly condemned as timid and spineless. But the wisdom in that move is that he allowed s considerable amount of national debate to take place. Many stakeholders availed themselves the opportunity to take a stand. Massive national consensus has built up, it seem clear to me,and Marende's ruling both reflects it and has been aided by it.
Was I sure then, absolutely sure, that Marende would make the ruling that he has no made? No. You can never be that sure. But I believed, based on the circumstances of the case and his previous rulings, that that was the only decision that he could make -- had to make.
So whose victory is it? First, the people of Kenya in their many ethnicities -- who are all too often ambushed with political decisions they have little time to reverse. Second, the new constitution -- which Kenyans are determined to implement and to have in its fullness. It is a victory, too, against impunity, ethnic myopia and lingering traces of an imperial presidency.