How credible is the Kriegler Report?

Deputy Prime Minister Uhuru Kenyatta over the weekend led a group of Central Kenya MPs in praising the Kriegler Report.

Their take was that the Commission of Inquiry chaired by South African judge Johann Kriegler had established that there was no rigging at the 2007 elections, and therefore those who resorted to violent protests should apologise. Across the divide, however, another group of leaders is very unhappy with Kriegler. They feel that the Independent Review Commission went out of its way to reach a pre-determined conclusion.

To them, that the elections were rigged is obvious, and therefore the Kriegler team must have had some ulterior motive in ignoring all the evidence provided to establish that the election was stolen. Both sets of reactions display a very predictable pattern of Kenyan politics — seeing only what we want to see. For Mr Kenyatta and company, the Kriegler Report is supposed to stand as proof that President Kibaki was indeed the legitimately elected president. For those crying foul, the Kriegler Report amounts to Prime Minister Raila Odinga being robbed twice.

What both groups deliberately fail to recognise is that the Report is not what they say it is.

They interpret it only from the tunnel vision mode where they see only what they want to see and ignore anything that might be inconvenient to their analysis. The stark truth is that Judge Kriegler did not say there was no rigging. What he said is that it was impossible to verify exactly where and how the rigging occurred. This is because the election was so badly mismanaged that neither a recount nor a re-tallying could establish the actual result. In saying that the claims of rigging could not be verified, Judge Kriegler was not saying that President Kibaki was the winner. Neither was he saying that Mr Odinga was the loser. He was simply stating that we will never know.

Those taking comfort in the findings of the report are totally misplaced because nowhere does it put the seal of legitimacy on President Kibaki. Just as misplaced are those unhappy that Kriegler did not declare Mr Odinga the rightful winner of the presidential election. Again, it falls on the burden of proof. Suspicion that an election is rigged is one thing. Providing incontrovertible evidence that would stand the test of proof is quite another.

It obviously would not do at the equivalent of a judicial hearing to present as evidence suspicion, rumour, and figures cooked up by political activists to conform to a set position. One of the things I find interesting is that the Kriegler team gave little weight to those from both PNU and ODM who appeared before the it purporting to provide expert statistical analysis of how their candidate either won or was rigged out.

Also appearing before the Commission were all sorts of supposedly independent experts, including a clutch of foreign scholars, who deluged the inquiry with data and engaged in their own academic disputes until Judge Kriegler advised them to take their quarrels to other fora. All the mountain of data presented seems to have been largely ignored. This is probably because the inquiry decided that all the numbers were cooked to support specific political positions, rather than the conclusions being drawn from the data.

Anyway, the position now is that we do not know who won the presidential elections.

President Kibaki and Prime Minister Odinga, sharing power after the electoral deadlock, have both publicly accepted Kriegler’s verdict. What they are accepting is not the issue of whether there was rigging or not, but that neither of them can claim legitimacy. So, in all fairness, the fairest declaration from Electoral Commission boss Samuel Kivuitu and his band of merry bunglers would have been a no result; and a fresh presidential election.

And if President Kibaki’s re-election was fraudulent and Mr Odinga’s claim was also fraudulent, then the two lacked the legitimacy to negotiate a sweetheart power-sharing deal. This makes this whole Grand Coalition arrangement both fraudulent and illegitimate. But then woolly-headed idealism must often give way to some practical realities. Only a fool would have argued for a repeat poll at a time when the country faced disintegration. The fight for leadership between two obdurate claimants spilled out into the streets and farms and a great deal of blood was shed before sanity prevailed again. That was the best that could be done in those circumstances, but let us never forget that sharing power was not an end in itself. It was at best a temporary solution designed to cool tempers.

We have been warned by Justice Kriegler and chief mediator Kofi Annan that unless we move to cure all the defects in our social, economic and political systems that gave rise to the carnage witnessed, then we are merely enjoying the lull before the storm. If we go into the 2012 elections not having resolved the long-term issues identified under the so-called Agenda 4, we will face an explosion even worse than what we just came out of.