Kibaki "in power illegally and illegitimately"

By Njeri Kabeberi-Kanene

Mr Samuel Kivuitu, chairman of the Electoral Commission of Kenya (ECK), was once respected. He has now turned against the very nation that held him in such high esteem. Kivuitu was one of my heroes and I always referred to him as an accomplished individual, who I thought exhibited a character of high independence, high intelligence, high integrity and courage. But his recent behaviour and character has shaken my belief in human beings to the core.

What is more shocking is that the institution he works for, ECK, is a constitutional office created pursuant to Section 41 of the Constitution and thus has security of tenure and independence. Over time, Kivuitu won the admiration of the international community for coming across as having guided the ECK through political transition. Kenya is now bleeding and thrown back to more than 20 years of political struggle because of his careless and reckless handling of the General Election results process.

He must therefore be held accountable for every loss of life, loss of property and any political and other crimes being committed. Communities are turning against each other. What are being witnessed are crimes against humanity by the security forces. In the absence of a credible election result, they are killing their Kenyan brothers and sisters, some in the belief that they are protecting the presidency. Others believe their rights have been denied and they want to be heard.

Why crimes against humanity? According to the Rome Statute, crimes against humanity are "particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority…."

In international law, a crime against humanity is an act of persecution or any large-scale atrocities against a body of people, and is the highest level of criminal offence. These persecutions can be of a political, ethnic, racial or religious nature. Crimes against humanity do not require intent to "destroy in whole or in part," but only target a given group and carry out a policy of "widespread or systematic" violations. Crimes against humanity unlike war crimes also apply in times of war and peace.

In an article published on January 5, Donald B. Kipkorir said: "In the fullness of time, history will apportion culpability to Samuel Kivuitu over the current anarchy."

That time should be now and not later as all evidence points to him. The power of the ballot is the most peaceful and powerful expression of a people in a democracy and overtime it strengthens a country’s democratic pillars. No one government, or Kivuitu, should take this away from Kenyans, because then you leave them to seek other ways to express themselves, which can only harm our nation as it has.

Because of Kivuitu’s actions or inaction, we can safely conclude that our election is incomplete and Kibaki is therefore in power illegally and illegitimately.