In the realm of poetry, the cascade of events leading to the removal of ODM secretary-general Edwin Sifuna can be described as comedy and a travesty. The move has since been suspended by the court and the Political Parties Disputes Tribunal.
Legally, the events amount to a miscarriage of procedural and substantive justice. In biblical terms, what has been meted to Sifuna and other so-called rebels would be meted out by a biased Sanhedrin.
When Kenyans who fund political parties thought they had turned the corner in the pursuit of justice and in furtherance of the rule of law, the troubled history of summary injustice and hostility to dissenting opinion reared its ugly head on Wednesday, February 11, clothed as a legal move that was a total farce.
In a matter of hours, the equivalent of the Sanhedrin in ODM, comparable to the Kanu disciplinary committee of yore decided that the SG is a dangerous deviant and outcast who should be cast away, without listening to his side of the story. The “jury” in this case acted incestuously, with none among them raising any dissent or circumspection.
They even ‘forgot’ that ODM’s constitution recommends alternative dispute resolution as the first line of dispute resolution in the party.
The Oburu Oginga faction of ODM that convened its factional National Executive Council meeting in Mombasa that Wednesday appears to be so self-assured that the party’s constitution, due process and fair administration of justice principles enshrined in Articles 47 and 50 of the Constitution of Kenya do not bother them.
Like all overzealous converts to a new religion, this faction has been acting like a zealot willing to self-immolate or explode and tear down the party for the thrill and in order to fulfil the diktat of their new patrons and high priests.
The Oburu-Gladys Wanga-led faction appears hell-bent on forcing its will on the party at any cost. The ODM constitution stipulates that the party chairman is required to give a written three-day’s notice to each member - personally to each NEC member - convening such a meeting.
The notice must indicate the agenda and venue of the planned meeting. In this case, these rules were flouted with no rational explanation of the egregious breaches. According to reports in the public domain, the Mombasa meeting was convened by a nocturnal WhatsApp missive on Monday, February 9, through the unilateral action of the chairperson and her faction members with no indication of what the agenda would be.
On the preceding Saturday (February 7) the Oburu wing struck out three members: Kipkorir Menjo, Taita Taveta Senator Jones Mwaruma and Saboti MP Caleb Amisi from NEC - without explanation.
By any measure, the removal of the tri and the subsequent recommendation to sack Sifuna as amounts to unilateral action and an affront to due process as enshrined the Articles 47 and 50 of the Constitution and the Fair Administrative Action Act.
They require that one cannot be condemned unheard and that the process of any administrative action must be fair and procedurally sound. It matters not what charges one is accused of, as long as the disciplinary process is not tainted with procedural unfairness, bias and illegality.
ODM is a public and parliamentary party funded by taxpayers. It actions and decisions are, therefore, not a private matter that some officials can tinker with willy-nilly. When a party feels one of its leaders or members is errant or has violated its rules and constitution, it must follow due process as enshrined in law to discipline them.
To discipline a party official or member, you first frame the charge, invite the “rebels”, and supply them with the incriminating evidence and facts.
You then allow them adequate time to respond to the charges or challenge the charges and evidence and then make a decision after listening and evaluating the responses from all sides.
This requirement for fairness and due process is neither a luxury nor an option that the triumphalist faction in ODM and its bloggers can dispense with.
The said February 7 eviction of the three NEC members from the party roll without due process was, clearly designed to ensure that only yes-men and yes-women attend Wednesday’s February 11 factional parley. It was also mischievous to purport to convene a NEC meeting on a parliamentary day and in the middle of the week when officials and most NEC members would be busy and unable to attend.
A party that prides itself as the champion of justice and rule of law, ODM should be the last political party to flout the Constitution of Kenyaand its own constitution, and in the process subject members, officials and the taxpayer to a travesty of justice.
A dispassionate court or tribunal will not hesitate to invalidate any outcome borne of a constitutional or statutory violation, especially an unfair trial even when administrative action is meted out in a private organisation or club. Increasingly, courts uphold the right to expression and opinion even where such expression annoys the powers that be.
Ochami is an advocate of the High Court of Kenya
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