In refusing to seek an immediate end to the ethnic strife, perhaps each side hopes to somehow gain the upper hand in the resolution of the post-election crisis.  This is both dangerous and unacceptable.  It is needlessly stoking tension and violence as innocent Kenyans get killed by overzealous supporters of each camp.  Both the Kibaki and Raila camp must act immediately to end the madness.  Everything else must come after that.

The First Step
It bears repeating, the first step must be to end the violence.  Neither side should equivocate on this.  Neither side should take any other steps which might escalate the mounting tension.  Even as the government attempts to control the violence, it must do so in a way that is sensitive to the underlying cause, and that avoids giving credence to the notion that the Kibaki regime is merely attempting to perpetuate itself in power.  The government must understand that there is genuine anger at the real and perceived irregularities in the just-concluded elections, and understand that half the country see these irregularities as Kibaki’s illegitimate attempt to remain in power.  On the other hand, ODM leaders and supporters must understand that the first task is not to determine the winner of the elections.  The first task is to end the madness of violence that has engulfed us.  They must desist from making any further comments which might inflame their supporters.  Averting genocide is more urgent than determining the election winner.

The Second Step
The second step must be to find a political solution to the current impasse on the outcome of the presidential elections.  There is no doubt that many Kenyans consider the outcome as announced by the Electoral Commission of Kenya to be rigged.  There is no doubt that most election observers have demonstrated serious irregularities – especially related to the process of tallying presidential votes.  There are many valid questions about voter turnout in some PNU and ODM strongholds as the Maragua and Rarieda cases indicate.  Mr. Kivuitu now says that he does not know if Kibaki won the elections.  In any event, many people consider the declaration of Kibaki as the President to be ill-advised, and makes for an illegitimate president.  

The first step to finding a political solution must be for Kibaki and Raila to meet on mutually agreed terms.  Each must withdraw and desist from making unreasonable demands for such a meeting.  For such a meeting to be fruitful, the Kibaki government must soften its stance that the only solution to the crisis is a “legal” one pursued through the judicial process.  The government must immediately stop its rhetoric that no “mediation” is required to avert a crisis.  On the other hand, Raila must withdraw his demand that Kibaki steps down before he agrees to a meeting.  Raila must understand that by meeting Kibaki, he would not be legitimizing his presidency; he would be exercising responsible leadership.

A meeting between Raila and Kibaki would serve both performative symbolic and pragmatic functions.  Symbolically, such a meeting sends a message to their supporters that it is time for peace while giving hope to a mutually agreeable solution.  Pragmatically, it will give a chance to both Raila and Kibaki and their advisers to start considering solutions to the crisis.

First Option
One such solution is to agree to a re-tallying of all the presidential votes, and the parameters for such an exercise.  For this to ultimately work, both sides should agree on the rules of the game first. For example, both sides should agree on what to do where there is evidence of tampering with Form 16A or when to pursue further investigations at the constituency level before utilizing the numbers provided to the ECK.  Such a re-tallying should be done by a credible, independent and international body.  Both parties must recognize that a re-tallying must not only be fair, it must be perceived to be fair by Kenyan citizens.  An independent international body will eliminate any claims that the final outcome was determined by the respective party’s self interest.

Second Option
Another possible solution which both sides must seriously consider in light of the ethnic strife engulfing the country is another presidential election after calm is restored.  If this solution is to work, both parties must agree on terms for a “transitional government.”  It would be important for both parties to be creative in thinking about this solution.  If this option is elected, for example, a transitional government does not necessarily have to be a short-term power-sharing arrangement.  Both parties could agree to legally limit the kinds of powers the executive would exercise during the transitional period until another election is carried out.

Third Option
A third political solution could be to combine a softer version of the “transitional government” solution with a legal solution.  The parties could agree that Kibaki continues presiding over a transitional government until a legal solution is pursued and finalized.  However, rather than utilize the deeply flawed, highly technical election petition process, the parties could agree on a new, independent election tribunal that could consider all election complaints and determine their validity.  One could think of creative ways to make such a tribunal “legal” within our legal system – for example by asking the Chief Justice to constitute it, with input from both sides, from among mutually agreeable High Court judges so that it actually sits an election court with an expedited schedule – and operating under new rules of procedure agreed upon by both parties but formally promulgated by the Chief Justice.  Again, both parties could ex ante politically agree to bind themselves to the determination by such a tribunal.

Fourth Option
Finally, both parties could agree on a longer-term power-sharing formula where both the ODM and PNU agree to form a government until the next presidential elections are held.  This could have the advantage of giving the country a chance to heal before the next polls.  If this course of action is elected, it might also include an agreement for legal, political, and constitutional reforms that must be undertaken before the next presidential elections, and the time-table for such reforms.  As this post-election crisis has shown, we badly need electoral and constitutional reforms – and these reforms could be a sound basis for the healing that the country badly needs.

Conclusion: Bold Leadership Needed
If any of these political solutions is chosen, the parties must agree on the effect of the solution elected on existing legal mechanisms for pursuing the rights of the parties.  For example, the parties must agree if a particular solution pre-empts and precludes the legal solutions envisaged in the constitution and statutes.

These political solutions require bold and responsible leadership by both Kibaki and Raila, and a measure of humility by their supporters, but we need nothing less to avert the crisis we are facing.  On Kibaki’s side, it will require acceptance of international mediation as the basis for establishing consensus.  Since, as Alfred Mutua has stated, the government prefers “dialogue”, this will be a significant concession.  On Raila’s side, it will require that he takes aggressive action to calm his supporters and that he seeks to legitimize his claim to the presidency through one of the measures suggested above.

We hope our leaders are listening, and are serious about saving our beloved country.

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Prof. James Gathii is the Governor George E. Pataki Professor of International Commercial Law Albany Law School
Prof. Dismas A. Masolo is the Justus Bier Professor of Humanities and Distinguished University Scholar and Professor of Philosophy, University of Louisville, Louisville, Kentucky
Prof. Joel Ngugi is an Assistant Professor of Law, University of Washington, Seattle
Ms. Atieno Caroline Odhiambo is a Human Rights Lawyer in Seattle
Dr. Kiarie Mwaura is a Visiting Fellow, Human Rights Program at Harvard Law School and Lecturer in Law, Queens University, Belfast, Northern Ireland
Prof. Sylvia Kang’ara is an Assistant Professor of Law, University of Washington, Seattle