The-Accountant-Mar-Apr-2018

OPINION
numerous challenges. It is not my forte
to talk about these as there are many
able souls who have been doing so with
considerable agility. I will focus my
attention on a subject I am least qualified
to talk about as it is populated by many
brilliant minds and, alas, an alarmingly
high number of scoundrels and scallywags
as well. This is our legal fraternity.
Anyone who watched the proceedings
of the presentations of elections
petition must have been amazed at the
legal battalions set up to defend the
protagonists in the petitions dressed in
their assorted black robes and white wigs.
The seven-member bench was equally
resplendent in their black robes and red/
white sashes and the way they dramatized
their entrances and their exits. Absolutely
fascinating.
But one thing that perhaps escaped
the attention of the casual observer is
that they were ALL members of the
same profession: Law. Some stood for
the accused, others for the petitioners,
others were called “amicus curiae”, friends
of the court, and of course there was the
Bench itself led by the Chief Justice. All
of them “learned friends” talking the same
language some of them being pupils of
others who were their teachers or masters.
In fact, all the judges have law degrees
from the University of Nairobi. A really
strange modern convocation talking, at
times, about a subject many were not
comfortable with – electronic electoral
data transmission. A truly weighty matter.
The Supreme Court’s Judgement
The verdict by the Supreme Court was the
most interesting part of this melodrama.
Four were for it, two were against it, while
one was, mercifully for him, unwell and so
unable to make a judgement. Curiously,
he was the only apparent Muslim in the
group and since judgment day was on the
day of Eid ul-Adha, a holy day in that
religion, he was recused by fate. But no
matter.
Kenyans and the world are still trying
to come to terms with the ramifications of
the verdict the centerpiece of was whether
the election of the president reflected “the
will of the people”, etc. As a student
of philosophy, I find that statement an
exercise in futility for two reasons. One,
it has been proven mathematically that
it is not possible to aggregate individual
preferences in order to produce a national
consensus (Kenneth Arrow). In our case,
it is a patent absurdity because of our
cultural diversity. Given that situation,
the only rule to resolve the problem is a
compromise: the democratic principle of
My own view
is radical:
Democracy and
its attendant
institutions and
fallibilities have
outlived their
usefulness in
a world where
technology
can even
make better
judgements
than human
beings – a
computer
recently beat
Gary Kasparov
in chess.
majority – the 50% +1 rule.
Two, logically, for that rule to apply, every
single vote matters in its absolute purity,
i.e., it must reflect the voter’s choice. No
more, no less. Assuming that every voter
made their choices voluntarily, the job
was really for the IEBC to do a simple
arithmetical addition. This does not
even require a calculator leave alone a
computer. The sting in the tail is, in my
view, quite simple: the individual voter
must have a right to find out, if necessary,
the fate of his/her vote in the final tally.
Technically, this is an elementary process:
just let me trace the route my vote took
from the polling booth to the final tally.
If I cannot find it and I know that I voted
then, ipso facto, the whole process is
flawed. If you don’t believe it, just ask a
German philosopher called Karl Popper
on the principle of falsifiability.
The verdict by the learned judges was
therefore logically consistent the numbers
notwithstanding. All they needed was one
unaccounted for vote to nullify the whole
process. And therein lies the fallacy of
democracy and its midwife, the electoral
process. And it is simply this: If you are
dealing with a fundamentally flawed
product (democracy), does it matter how
you go about proving it right or wrong?
The dissenting judges therefore had a
point: just because you found that there
was one goose that was NOT white, do
you condemn the entire kingdom of the
geese? And worse, who will bear the cost
and the consequences of that decision?
My own view is radical: Democracy and
its attendant institutions and fallibilities
have outlived their usefulness in a world
where technology can even make better
judgements than human beings – a
computer recently beat Gary Kasparov
in chess. If we can take a man to the
moon and back and even discover a new
galaxy called Sombrero that is 28 million
light-years away, surely we can reinvent
democracy which was created by Greeks
and refined by Romans just 3,000 years
ago.
As a passing point, the Supreme Court
was ably advised about their new role by
one of their truly learned friends, Fred
Ojiambo, on 14th November 2016 when
the new court was being inaugurated.
They were forewarned and therefore
forearmed.
Finally, maybe, Kenya can show the
way out of the democratic mess just like
Mark Anthony did when he trounced the
assassins of Julius Caesar. Big question
is: Does our legal fraternity have the
capacity or the will to do it given their
past reputation as professionals? Only
time will tell.
MARCH - APRIL 2018 39