Kivuitu: You Are Not Almighty God To Judge Me
It is not every other day a senior public figure receives a damning note from a private citizen, but on the 14th day of May, 2008, a political activist Shailja Patel decided to seize the moment and slipped a copy of her open letter to the Chairman of the Electoral Commission of Kenya (ECK), Samuel Kivuitu at a forum on the Post-Election-Violence (PEV) sitting in Nairobi.
The late kivuitu was the chair of the now defunct Electoral Commission of Kenya. As the Returning officer in the presidential election of Dec 27, 2007, it was his official duty to announce the presidential candidate who had scored the highest number of votes and declare him the winner and eventual President-elect.
In Kenya, Presidential Election are conducted together with the general elections for Parliamentary and Civic candidates. Electoral Commissioners announce the winners of parliamentary contenders while returning officers announce the civic wards winners.
Even in the event where there was only one candidate validly nominated person as the presidential candidate, the Returning officer is obligated by the election law to duly declare him the winner and the president-elect at a designated place and in presence of the Chief Justice as specified by the law.
The law also requires that any person who is not satisfied with the declared results be they as a candidate or voter ought to duly file an electoral petition within time specified for filing of the same.
Complaint(s) Against Constitutional Commissioners
Like judges, members of constitutional commissioners and holders of independent offices enjoy security of tenure. What this implies is that they cannot be dismissed or disbanded at will.
Under Article 251(1) of the Constitution of Kenya, A member of a commission (other than an ex-officio member), or the holder of an independent office may be removal from the office only for:-
(a)
Serious violation of the constitution, or any other
law, including a contravention of Chapter Six;
(b)
Gross misconduct, whether in performance of the member’s or
the office-holder’s functions or otherwise;
(c) Physical
or Mental incapacity to perform the functions of office;
(d) Incompetence;
or
(e) Bankruptcy.
(2)
A person desiring the removal of a member of a commission or
of a holder of an independent office on any ground specified in clause (1) may
present a petition to the National Assembly setting out the alleged facts
constituting that ground.
(3)
The National Assembly shall consider the petition and, if it
is satisfied that it discloses a ground under clause (1), shall send the
petition to the President.
(4)
On receiving a petition under clause(3), the president:-
(a)
May suspend the member or office holder pending the outcome
of the complaint; and
(b)
Shall appoint a tribunal in accordance with clause (5).
(5)
The tribunal shall consist of:-
(a)
A person who holds or has held office as a judge of a
superior court, who shall be the chairperson;
(b)
At least two person who are qualified to be appointed as
High Court Judge; and
(c)
One other member who is qualified to assess the facts in
respect of the particular ground for removal.
(6)
The tribunal shall investigate the matter expeditiously,
report on the facts and make a binding recommendation to the president, who
shall act in accordance with the recommendation within thirty days.
(7)
A person suspended under this article is entitled to
continue to receive one-half of the remuneration and benefits of office while
suspended.
The Commission on Administrative Justice
In Kenya, there is the office of the Ombudsman. This office is mandated to receive complaints from the citizen and obligated to address issues of maladministration in respect of service failure, inaction, inefficiency, ineptitude, discourtesy, incompetence and unresponsiveness in public service.This Commission on Administrative Justice seeks to operationalize the provision of Article 47, respecting the right of every person to fair administrative action in public service.
The term “public service” means the collectivity of all individuals, other than State Officers, performing a function within a state organ. A “state organ” means a commission, Office, Agency or other body established under the constitution of Kenya.
Protection of public officers:
Under the provisions of Article 36 of the
Constitution of Kenya:-
A public officer shall not be:-
(a)
Victimized or discriminated against for having performed the
function of office in accordance with the constitution or any other law; or
(b)
Dismissed, removed from office, demoted in rank or otherwise
subjected to disciplinary action without due process of law.What the foregoing
paragraph implies is that a public officer who considers himself defamed by the
publication of a defamatory statement has the right to institute civil
proceedings in action for slander in respect of words calculated to disparage
him in any office, profession, calling trade or business held or carried on by
him at the time of the publication of that defamatory statement.
Under The Defamation Act, Cap. 36 of the
Laws of Kenya, a defamatory statement means libel, slander of title, slander of
goods and other malicious falsehoods.
In any action for libel or slander, words
are interpreted in their most natural meaning. One acceptable definition of
defamation is that it is the publication of a statement which tends to lower a
person in the estimation of right-thinking members of society generally; or
which tends to make them shun or avoid that person.
Elements of defamation
The term defamation consists of libel and
slander. While the former are statements contained in a book, newspaper,
magazine or any other publication materials, the letter refers to a defamatory
statement which is contained in a speech or in some significant sign or
gesture, or in an understandable language.
Libel is actionable perse, i.e. without prove of damage. Slander is only actionable if
special damage can be proved by the plaintiff.
The essential elements of defamation are
as follows:
(i)
The words complained are of defamatory in nature.
(ii)
The said defamatory words must refer to the plaintiff,
by name or by virtue of a description.
(iii) The
words must be published to some person other than the plaintiff, and communicated
in a manner which is intelligible and also in an understandable language to the
recipient(s).
Defences to defamation:
(a) Justification:
This defense is raised
when the defendant pleads that statement was indeed true. However, the
defendant must prove the truth of allegation made against the plaintiff. In
this case, it is acceptable that no person can claim that his character has
been damaged by the publication of the truth.
(b)
Fair comment:
It
is also acceptable that a person is entitled to express his opinion on matters
of public interest.Freedom of expression is enshrined in the supreme law under Article 33 of the Constitution of Kenya. However, under clause (2) (d) (i), the right of freedom of expression does not extend to-(d) advocacy of the hatred that:-
(i)
Constitutes ethnic incitement, vilification of others,
incitement to cause harm.
Under
clause (3) of Article 33, the exercise of the right of expression by any person
shall respects the rights and reputation of others.For the defence of fair comment to succeed, the defendant must prove that his expression was one of honest opinion and not an assertion of fact, and that the comment was fair in every respect. Comment must be on a matter of public interest and not, for this instance, on the private life of an unknown person.
However, if the plaintiff proves that the statement was not a fair comment based upon the facts, and that the defendant was motivated by malice, he will had successfully destroyed the defense of fair comment.
(c)
Privilege:
Defence
of privilege can be available to the defendant if he can prove that the alleged
defamatory statement was made from a privileged occasions. A privileged
occasion is either subject to absolute privilege or qualified privilege.
(i)
Absolute privilege
It
is not actionable to make a rather defamatory statement if it was made pursuant
to the proceedings in a privileged occasion such as the National Assembly
session or judicial proceedings by judge, related to matter in trial.In addition, all communications made by a public officer to another public officer in the course of official duty are also absolutely privileged.
(ii)
Qualified privilege:
This privilege is available if one can
prove that:
1.
He made the statement in pursuance of a legal, moral or
social duty and where is a reciprocal duty to receive such a statement. Legal,
moral or social duty are very compelling pleas of qualified privilege. But
then, the court must be satisfied that it was all in pursuance of a public
interest.
2.
Fair and accurate reports of parliamentary and judicial
proceedings, meetings of local authorities, companies and statutory
corporations when the public have the right to attend.
However,
the report must not only be fair but also accurate in every aspect. Otherwise,
to quote such a report out of context as to include your biased opinion would
deny one the plea of qualified privilege.
3.
Common interest:
Some
examples where this element of common interest can be pleaded is where a
parishioner would address a complaint accusing his pastor to his bishop, or
where a client would file a complaint to the lawyers’ body accusing his counsel
of professional misconduct or inadequacy; or a litigant addressing a complaint
against a judicial officer to the secretary of the Judicial Service Commission
(J.S.C).Ms Patel’s note read in part:
“It’s not too late, to recover your humanity. To open your eyes to the suffering and longing of this nation. To admit that something went terribly wrong. If you could only rise to the desperate need of this turning point in Kenya’s history, you could redeem yourself with the simplest of words: “I’m sorry.”
The full text of kivuitu’s mail read as follows:
“Dear Madam, I thank you for your letter dated 14th may 2008, and concerns you expressed therein.
The Holy Bible has taught me to late leave judgment of others to God the Almighty. I do not know if you are the Almighty God or not but you did not seem to be Him when I saw you on 14th May, 2008.
You are all the same entitled to your views. I however
humbly deny any wrongdoing. The laws require that I declare the winner of the
presidential elections once the Commission determines the Candidate who scored
the highest marks, and led 25% of votes in his/her favour in 5 Provinces.
That is all I did, and there was no other candidate or
his/her agent seeking me to hold on and re-tally, no.
After announcing the results, fellow appeared before me and
requested me to hand over to him the president’s certificate. I told him that
that is only done to the winner personally and directly.
The fellow then informed me that Hon. Kibaki was awaiting to
be sworn as the president and the Chief Justice was present, duly robed, for
the assignment.
He requested me to take the certificate there. I had no
business retaining the certificate. It was not mine. The law says it be given
at the place the president is to be sworn. I obeyed the law and took it there.
Commissioners do not count vote. Commissioners do not tally
counted results. They simply verify these. They do these through Commissioner’s
senior officers. Commissioners announce results as presented to them by these
officers. Or what else do you suggest they should do?
My conscience is absolutely clear. I know how dangerous it
is to delay announcing the results. There are several interests in the results,
and are all equally important. I was hurt in 2002 for not announcing results
which I had not yet received.
I am not a seer, like you seem to be, to be sure that there
would have not been death if I postponed the announcement of the results.
With my humblest view I do not share the view that people
killed others or destroyed the properties belonging to others, on account of my
announcement of the winner.
I believe that irrespective of whoever of the two top
candidates won, there was going to be violence. That the environment was
created by the politicians themselves. You seem however to worship them as
deities.
Secondly, I respectfully believe the killers, who had been
already charged with rhetoric, reasoned thus why did Kibaki or Kalonzo
get these votes in our areas?
They looked round and saw kikuyus, kambas and other
“mandoandoas” (as they had been told call them). They reasoned these were the
ones who voted thus and must eliminate them.
Even in poor coast, suspected “wrong” voters were ordered to
pronounce certain words. Once they did not do so like the locals, they were
violently evicted and robbed of their properties and raped. Thus the
genesis of our tragedy is in our dirty politics and negative ethnicity.
It is bad
luck we have kind people like you who are too naïve to realize the depth of our
malaise. No wonder facile and dishonest assignment that Hassan Omar advanced
thrilled some of you.
This
confirms Kenya is in for hard times for a long while to come. Have a nice day
Ms. Patel.”
The late Samuel kivuitu was a
straight-talking and a no-nonsense chair of the now defunct Electoral
Commission of Kenya (E.C.K). In his hey-days, he was a firm stickler of the rules
of law and natural justice that hold that: (i) no man is a judge in his own
cause, thus ensuring no bias; (ii) there must be bonafide (good faith) and; (iii) each party must be given an
opportunity of knowing the case against him and of stating (prosecuting his own
case).
As a keen lawyer and firm legislator, he knew and believed
that all anti-establishment elements tend to disguise their partisan politics
by ascribing to themselves the civil or human rights activists’ tag. As a
senior public figure, he loathed everyone whom he perceived to be playing dirty
politics or undermining the authority of the ECK, and was a hard-tackler who
would readily go down with anyone who ruffed his feathers.
Anyone who would deliberately, or
otherwise, cross his path got a fair share of his scathing attack and equally
readily become a plaything of his rather rapid sarcasm.
It was such kind of a man Ms Patel had tried for size as if
to mock his conscience and convictions. And Mr. Kivuitu seized the moment to
not only clear his conscience but also to hit back at the naivety and ignoble
shame of those who ‘worshipped politians as their deities’. *Mfalme Davis
