Al Ghurair case was weak from the start

Saturday July 22 2017

By LUIS FRANCESCHI
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Artur Margaryan and Artur Sargasyan did not look alike and did not have the same family name.

They only shared their first name, Artur, or Arthur in English, which probably descended from the Celtic word for bear “Artos”.

Eleven years ago, they caused pandemonium at Jomo Kenyatta International Airport. Their Runda home was raided and the police found guns, ammunition and official IDs. The “brothers” were powerful and well connected. They left Kenya, and the riddle was never resolved.

In our simplicity and naïveté, we called them brothers but the coincidence of a first name does not make Armenians blood brothers and they did not look alike, save for their badly kept beards and Ray-Ban sunglasses.

This same naïveté misled the investigators looking into the relationship between the owners of the Dubai printing company chosen to print election ballots and the chairman of the Dubai Chamber of Commerce, who visited Kenya some time ago.

What could have been a very interesting case from the constitutional theory point of view was marred by inaccuracies and unjustified suspicion.

'VERY COMMON NAME'

Nasa's advocates were misled to conclude that everyone called Al Ghurair was related.

Conspiracy theorists concluded that Al Ghurair Holdings Limited and Al Ghurair Investment LLC were related, and Al Ghurair Investment LLC's boss, Majid Saif Al Ghurair, who had visited Kenya with the UAE delegation and met President Kenyatta, was the head of the company printing the ballot papers, Al Ghurair Holdings Limited.

Had the investigators done their homework properly, they would not have embarrassed Nasa at the High Court and the Court of Appeal. Al Ghurair is a very common name in the Middle East.

There are Al Ghurairs all over Saudi Arabia, the UAE, Kuwait, Qatar, etc. The researchers should have known better. Not everyone sharing a name is related, just like not all Kamaus, Njoroges or Odhiambos are related.

Could NASA have done this simply to attract attention and gain political mileage at the expenses of the courts? If not, then this was a blunder, and if yes, this would have been quite unethical.

This is what Muthomi Thiankolu calls the ‘judicialisation of politics’. If this is the case, the seed of doubt, mistrust and conspiracy has been planted in the mind of every Kenyan in total disregard for the truth, and in this case, the saddest part would be that the High Court fell for it and swallowed it line, hook and sinker.

There was no relation between the two Al Ghurairs, and this unsubstantiated claim should have never appeared in the papers unless the Nasa team had irrefutable evidence of such a claim.

The ballot paper printing case was not supposed to be a complicated discussion. Although it is undeniably important for the nation, it should not have gone beyond the High Court examination, and it all went south when the High Court published its rather complicated, convoluted decision.

The crux of the matter was anchored on the nature of the constitutional requirement of public participation in the tender process of election materials, and if so, whether there had been sufficient public participation in the awarding of the tender.

In struggling to find a solution, the High Court jumped into the right pool, Article 10, but at the shallow end, which was painful. Article 10 says:

 

“(1) The national values and principles of governance in this Article bind all State Organs, State Officers, public officers and all persons whenever any of them –

(a) Applies or interprets this Constitution;

(b) Enacts, applies or interprets any law;


(c) Makes or implements public policy decisions.

(2) The national values and principles of governance include –

(a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;

(b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized;

(c) good governance, integrity, transparency and accountability and

(d) sustainable development.”

In 2008 and 2009, a group of experts met at the National Economic and Social Council, under the auspices of the Office of the President. We met weekly, for more than a year. This was our pro-bono contribution to nation-building.

Our task was to come up with the national values of Kenya and a National Value System policy. A very comprehensive study and several surveys were carried out throughout the country.

Each value was carefully examined and tested. They were found to comply with nationality, and four key common principles:

The principle of justice, by means of which rights and entitlements are guaranteed.

The principle of personal liberty, which creates space for self-realisation and personal creativity.

The principle of rationality, which ensures that decisions are optimal, not only according to the self-interested pursuit of material well-being but according to the total well-being of the human person.

And, the principle of optimality that encouraged the right choice, i.e. what is optimum for ‘the person’ and ‘society’ within an opportune timeframe and optimum quantity. 


INSTITUTIONAL FRAMEWORKS

We had hoped these values would go a long way in curbing vices, such as corruption, tribalism, nepotism, oppression, impunity and lack of integrity, hatred, greed, and violations of human rights, political and economic injustices and division.

The desired end result would be a better delivery of services to the people. These values provided the normative standards that the people aspired to be governed by.

It was clear to us, that these values could not function on their own. They had to be supported by structural and institutional frameworks.

The substance of this work eventually found its way into Article 10, which was conceived as both aspirational and prescriptive, and no one can do away with the values. We were aware that many of them were not actual, but this did not imply free license to postpone or flaunt their application.

Think of a marathon runner. The fact that the race is going on does not mean you should not aim for the finishing line or flout the rules of the race.

The national values of Article 10 were drafted as the spirit that should inform all our decisions. Democracy without public participation is an oxymoron, and this is what the article tried to stress.

For many decades, we had ‘democracy’ in Kenya without public participation. It had been a fake democracy.

GOLDEN OPPORTUNITY

So, public participation is a means to an end, and that end is democracy. Democracy is the greatest form of public participation, and it is precisely through the election process that one secures our democracy.

Preventing democracy for the sake of public participation would have been a substantial contradiction of Article 10 itself, and this is what NASA and other respondents got wrong. They should have run away from the argument of public participation as a tool to prevent an election.

Given this golden opportunity, Attorney-General Githu Muigai wasted no time in arguing that:

there is insufficient time to enter into a new contract to procure election materials, the trial court erred and did not take into account the hard reality that Kenya would not in all probability conduct the General Elections on the constitutionally scheduled date of 8th August 2017.

Mr Muigai also emphasised that :

the orders of the trial court stands to plunge this Country into an unprecedented constitutional crisis; that since the Constitution prescribes with exactitude the specific date on which the six elections are to be held, failure to do so on the specified date would lead to a constitutional crisis where the entire gamut of elective and appointive processes of the political organs of the State will grind to limbo not to mention the attendant negative effects on the economic, social and political spheres of our nation.

It was then easy for the Court of Appeal to downplay what some had unconvincingly argued as deficient public participation in favour of a greater good, the general elections on a date constitutionally fixed.  

INNOVATION AND MALLEABILITY

By virtue of Section 3 of the Public Procurement and Asset Disposal Act, it is near-impossible to argue that public participation does not apply to procurement of election materials.

If anything, this section explicitly provides that in conducting any public procurement and asset disposal, State organs (including the IEBC) shall be guided by the national values and principles articulated in Article 10 of the Constitution.

According to the Court of Appeal, the IEBC engaged in public participation and the High Court erred in finding that there was insufficient public participation to meet the constitutional threshold.

By the justices' own admission, at paragraph 194 of the judgement, public participation calls for innovation and malleability, depending on the nature of the subject matter, culture and logistical constraints.

Public participation does not require individual input by each member of the public and may be satisfied if it includes dissemination of information to the public.

As evidenced by the IEBC, public involvement and participation was satisfied through stakeholder meetings convened by the IEBC. It also emerged that the public was kept apprised of the matter by regular media briefings.

WEAK FROM THE START

As the IEBC rightly argued, it is beyond the purview of the court to direct the body on how to conduct public participation. Following the Mui Basin case, cited in paragraph 194 of the High Court decision, the fashion that the said public participation should take is really dependent on the public body.

As the brilliant Emmah Wabuke Senge told me in no uncertain terms, for the court to dictate the form of public participation would be tantamount to a careless flirtation with the 'separation of powers' doctrine, and this was perhaps the most glaring error of the High Court.

The case is now over and some on Twitter have suggested it should move on to the Supreme Court for constitutional review. I would really discourage anyone from following this course.

The case was weak from the start, and when the matter of Al Ghurair’s name was clarified to have the significance of "Kamau" in UAE, the whole process was discredited. 

Nasa and Jubilee should focus on clean campaigns and obedience to the IEBC's dictates. This election is too close, and it could go either way.

Any thoughtless move from any of the two main candidates could cause unforgettable, unforgivable consequences.

Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi