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Monthly Archives: December 2012

Uhuru Kenyatta Will Reluctantly Abandon His Presidential Bid In Favor of Mudavadi

UK_Mudavadi

A lot has been said for a long time that Mudavadi is a State House project. The going theory has been there were those among Kibaki insiders and it was postulated right in the KSG series that this group I call KIbaki A preferred Mudavadi to Uhuru as president for a number of reasons, not the least of which is UK’s being saddled with the serious crimes against humanity charges he faces at the ICC.

Kibaki B are those who still insist the presidency must stay in the House of Mumbi and this is the group that is supporting UK.

From all indications, this latter group (Kibaki B) is a smaller and less influential group than their counterparts at Kibaki A.

UK on his part has been busy mounting what appears to be a no-holds barred presidential campaign basically oblivious of the ICC and dismissive of the other reason even Kibaki A group acknowledges is a major obstacle in the way of a UK run for presidency and this is the simply fact there is significant fatigue across the country for us to have yet another Kikuyu president.

I have now been informed by several reliable sources and can confirm that UK will not be on the ballot.

This is because it has been decided that both UK and Ruto cannot be on the same ticket and neither will they both run for the presidency come 2013.

It’s not a decision reached easily but it took a heavy leaning from Kibaki A and a group of key foreign ambassadors who have prevailed on UK and Ruto their vying together is not a good idea and apparently UK has reluctantly agreed to let Mudavadi be the flag bearer.

In other words, UK has merged with Kibaki A tbe question remains how will this take place, given the Jubilee nominations are supposed to take place tomorrow.

The going theory here is there will be a sham nomination in which UK wins in a landslide but thereafter after “further reflections” and “the country is bigger than one individual” UK will declare that he no longer wishes to pursue the presidency at least until he is cleared from the ICC.

As an aside, the reported wrangling over the Jubiliee nomination rules is simply part of this shameless effort to depict the process as being free and democratic; it is not for all the winners are pre-selected.

The irony is by getting into this marriage with TNA, Mudavadi has confirmed what many starting from yours truly predicted his whining that ODM was not democratic was simply that whining and phony as it was without any ounce of sincerity.

Anyway, given Ruto cannot be a flag-bearer for the reasons previously discussed here, chief being he has no national appeal, Mudavadi will be plugged into the slot once more confirming he is a Kibaki A project.

The question which remains is whether Kibaki B will come on board and support this ticket and the money is on they doing just that.

The other even larger question is whether the Kikuyu will vote as a bloc for UK and there the money is on that not being the case.

Indeed, we recently saw a group of MPs from the area declare that they will bolt the Jubilee alliance were UK not to be its presidential candidate.

While that may be the case, the money is on most of these very same MPs voting for whoever heads the Jubilee alliance as this is basically PNU of 2013 and those voting strictly along tribal lines will vote for the party’s presidential election even it its a mannequin.

A Raila/Mudavadi duel therefore is in the making and were that to come to pass, it shall be one very interesting match-up because it features a weak, indecisive leader from Western backed by the monied in the former Central going against a seasoned pro and master coalition builder who knows where and how to get votes.

The money is on the latter carrying the day very easily and some would say even winning in a landslide.

Only a UK run could make this elections close; everyone else going against Raila goes down by large vote margins and this is true notwithstanding what the tribal math believers say will be the case.

Get ready for a presidential elections unlike any where Kenya’s most celebrated politician has to make the last stand to seal his legacy as the Enigma.

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Posted by on December 17, 2012 in Politics

 

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Assessing the Political Coalitions of 2013 Election Season

In Assessing the Political Coalitions of 2013 Election Season, published in the Star, I evaluate recently formed political coalitions of the 2013 election season and conclude Raila’s Coalition for Reform and Democracy (CORD) is the better poised to win the presidency and key governorships.

 
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Posted by on December 16, 2012 in Politics

 

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There Is Nothing Wrong With Raila’s Calling for the ICC Cases To Be Brought Back Home For Trial

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ODM presidential candidate Prime Minister Raila Odinga has recently been saying he would work with the UN and ICC if elected to bring the ICC cases for trial back home.

This view is consistent with his very early on position that these cases should be tried at home.

Indeed, as everyone knows, Raila led efforts to establish a local tribunal to try these cases but these efforts were defeated by MPs against the idea led by none other than William Ruto and those opposed to the establishment of a local tribunal coined the refrain which they sang to no end, “don’t be be vague, let’s go to the Hague!”

Well, they sang the refrain until the bill establishing a local tribunal was defeated.

The same characters once again led by Ruto soon realized they had blundered and started singing to a different tune to the effect “let’s blame Raila for being hauled to the Hague!”

They have been haplessly and shamelessly singing the same tune much the big lie it is because everyone knows Raila has had nothing to do with these now Bensouda 4 being charged at the Hague.

Consistent with his initial position, however, Raila now wants and has promised if elected he will work to have these cases brought home for trial.

As a result of making this commitment, the PM has been criticized by some who wrongly accuse him of not caring about the PEV victims in taking this position or of doing this simply for political reasons.

The truth is neither of this is the case; Raila certainly does and has show compassion and empathy for the victims and even though his decision to call for these cases to be brought back home is not without political implications, the decision itself is not per se driven by political consideration only.

There are a number of reasons why Raila believes these cases should be brought back home and leading among those is his belief and that of many others that these cases should never have been referred to the ICC to begin with but for the stupidity of the likes of Ruto who are now whining that someone else, namely, Raila is responsible for their being hauled to the Hague.

There is also a firm belief by Raila and many others that true closure can only come if these cases are tried and concluded at home instead of some foreign country and jurisdiction essentially coming to our homes and telling us so and so has been bad, bad, bad and must be punished.

We are quite capable of making these determinations albeit with a competent and reformed judiciary which a good case can be made we now have one well underway there.

I have taken the time to respond to a member of a popular Kenyan forum known as Jukwaa who is critical of Raila’s position and re-post here because the member raises a number of issues and concerns I have heard others raise and this is now addressing the issue from purely and entirely my own perspective.

I am sure the PM and his team will in the days and weeks head address the issue as they see or deem fit.

For easy following, I have italicized the critic’s comments, concerns and questions:

Raila has beem making some irresponsible statements, to the effect that these cases can be "brought back home" and that he will work towards that end. 

Raila saying these ICC cases can be brought back home and that he will work towards that end is not irresponsible in any way.

Neither Raila nor any politician worth their name in gold can or should ever let the other side exploit an issue to their disadvantage or even doom.

That will be dumb and that’s not to say allowing the opposite to happen, namely, turning the other cheek as one is being slapped with lies and distortions, is morally principled or virtuous; it’s not.

What Raila is doing is effectively removing ICC as an issue in 2013 much as the other side is really riding on nothing but ICC falsely and shamelessly crying victim while blaming Raila for it.

They’ll be shocked at how short that strategy will fall for Kenyans are not that gullible–at least a majority going to the polls won’t be.

It is unfortunate that quite a few seem to be taking these seriously, i.e. taking them for more than  vote-getters aimed at gullible Kenyans.

Call it whatever you wish but I have told you and will repeat what Raila is saying and doing about the ICC cases is what any savvy politician worth his name in gold must do in lieu of pleasing the handful or so purists who would demand that he doesn’t much to his assured doom.

Raila has not made clear why he thinks he would succeed where the entire GoK machinery and its fancy QCs failed.

Not necessary to do so but, take it from one purely speculating, if and when the time comes to make that case to the UN or ICC, the case shall be made.

It is important here to recall in its Admissibility challenge, GoK told lie after lie and made empty promise after empty promise.   For example, the ICC was given about 4000 names and told that investigations were ongoing and prosecutions would start in Sep 2011.   A couple of months ago, Tobiko announced that not enough evidence had been found to try any of those people.

True.

Would the ICC swallow any more stories, even it does not take into account that, far from investigating and prosecuting, GoK has been acting to hinder the process?

Yes.

Neither Raila nor ODM was any part of the hapless efforts by Kibaki and Co to defer the cases.

A new government bent on doing this will have a fresh crack at it and I can assure you contrary to your adamantly insisting in the opposite, it is, actually, possible to bring these cases back home.

But none of that is actually as important as the very simple fact that the cases cannot be “brought back home” without a second Admissiblity challenge, and GoK will not mount another Admissibility challenge—for the very simple reason that it would absolutely not succeed.

You have said over and over and remain quite stubborn in maintaining the position that efforts to bring these cases back home “would absolutely not succeed” but here you’re simply wrong for one because this can, in fact, happen under the right circumstances.

A quick look at the Rome Statute will show why another Admissibility challenge will absolutely not succeed.

In The Queen’s Counsel For Kibaki On The Ocampo Six Is Doomed To Fail, penned early last year in which I examined this issue of admissibility and deferral, I noted as follows:

Start quote:

It is both a disgrace and insult to our national pride and intelligence to be lectured by the “Queen’s Counsel” more than 48 years after independence about what the Rome Statute says about obtaining a deferral from the International Criminal Court (“ICC). Kenya does not need the Queen’s Counsel much less its own Attorney General to advise her on what the requirements of a deferral from ICC are or what she may need to do to obtain one, given this 11th hour; a good law student or any good student for that matter can easily research and spell this out for free.

This writer has previously laid out what it might take to obtain a deferral given the stature of these cases and to recap, the writer believes the best way to obtain a deferral is for Kibaki to ask Raila to join him in making the request upon satisfaction of the following conditions which are obvious, given the objective of once and for all bringing closure to the question of post-election violence and these are: (1) passage of law in Kenya to impartially try the perpetrators of post-election violence locally, including the Ocampo Six (2) commitment to judicial reforms by time certain and measurable milestones to allow such trials to take place without delay (3) asking the Ocampo Six to step-down from their position pending their trials or otherwise paving the way for an unimpeded investigation and [/i][i]prosecution of the cases before an impartial special tribunal.

Third, on the question of admissibility of the Ocampo Six case, ICC only looks to see if there is a credible ongoing investigation and or prosecution of any or all of the Ocampo Six in Kenya. As of this writing, there is no such a thing going on therefore the Queen’s Counsel advise to challenge the ICC cases on this ground is indeed without basis as the circumstances stand today. Were Kibaki to agree and follow through with the conditions set forth above, including passing a law to try PEV suspects locally, then the ICC might entertain an application at this stage of the game under Article 17(1)(c) of the Statute but any other application is doomed to fail.

End quote.

The foregoing analysis remains valid the only thing I would add is, time has run out for Kibaki what I suggested in this piece written more than a year and half ago.

That, however, does not mean nothing can be done to bring the cases back home were the new government inclined to do so.

First: Whereas a first Admissiblity challenge is a matter of right, a second one is not.   A second one is constrained both in terms of time and on the basis on which it can be made.  What’s more, it would require the leave of the court to make such a challenge.

This is an accurate statement of the law about admissibility.

Second: There is no way the court would grant leave for another challenge.

This is an inaccurate assessment of the chances the court would grant such a challenge; you simply have no way of knowing this with this degree of certainty, namely, “no way.”

A better assessment would be it’s unlikely barring compelling circumstances for the court to grant such an application and I can see but no time to go into that now one such a compelling case even though if you have been following my blogs on this, I have made it abundantly clear what that is and in a few words, unity of the country or put differently, not seeking a cure that makes the disease worse.

Here is what the law says:

Article 19(4):The admissibility of a case or the jurisdiction of the Court may be challenged only once by any person or State referred to in paragraph 2. The challenge shall take place prior to or at the commencement of the trial. In [u]exceptional circumstances[/u], the Court may grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial. Challenges to the admissibility of a case, at the commencement of a trial, or subsequently with the leave of the Court, may be based only on article 17, paragraph 1 (c).

Again, an accurate statement and citation of the law on this.

We can have a debate on what "exceptional circumstances" Raila, or GoK, or anyone else might have in mind; but with trials already scheduled to start in a few months, attention should be paid to the last sentence in 19(4).   

Article 17(1)(c):The person concerned has [u]already been tried[/u] for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3.

In other words, it is not enough to merely claim that they [u]will be[/u] tried back in Kenya.   (And, by the way, some fake “white-washing; trial would not fool the ICC judges or anyone else.)

I refer you to what I have said above about this.

Raila is a politcian.   As part of his "political DNA", he lusts after power, at the highest possible levels, as all politicians do.

You’re obviously entitled to your own opinion but others including yours truly would beg to differ that Raila “lusts” for power and neither do we hold the view that “all” politicians lust for power.

There is a difference between “lusting” for power and seeking and preserving power.

The former denotes something cynical, unhealthy and undesirable while the latter is all about what politics is and should be about.

And, of course, his supporters, fulfilling their "job description" as supporters, think he is the person most deserving of the most power (as do Uhuru’s supporters of Uhuru, Kenneth’s supporters of Kenneth, etc.).   Nothing fundamentally wrong with that.   [u]But[/u] the ICC process has, unfortunately, been politicized enough and more than enough and then some.   At this stage, gratuitous "additions" are neither necessary nor helpful.

I refer you to what I have said above regarding what the right thing is for a politician to do in the face of an issue being exploited to their detriment.

To the extent that anyone still believes that the cases can be "brought back home", the key question to answer is “how exactly?”

I have already laid out the conditions under which these cases could be brought back home in the piece referenced above and parts of which I have cut and pasted here.

Although I have also noted time has run out for this to happen, I can still see the possibility of bringing these cases home under these circumstances:

First, we have an open and transparent election come 2013.

Second, we have a president elected with a majority in the National Assembly that genuinely seeks justice and an end to this dark saga of our country’s history.

Third, the president and National Assembly move quickly to pass a law establishing a local tribunal to try these cases at home.

Fourth, the law is enacted.

Under these circumstances, I can see a successful petition being made to the ICC to relinquish jurisdiction under Article 17(c).

It is not true as you claim that a suspect who is the subject of the deferral mut have been tried for a case to be inadmissible on this basis; what you have done as many do is read and run with one part of the law while ignoring another pointing another direction.

Article 17(c) you have cited provides an absolute bar of ICC jurisdiction over a case that has already been tried. (This is the doctrine of double jeopardy as applied in the Rome Statute)

Article 17(1)(a), however, provides that admissibility can be challenged and had on the basis that the case “is being investigated [b]or prosecuted[/b] by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”

In addition to what I have noted above, there are a number of other arguments to be made to make a compelling case for the ICC to relinquish jurisdiction and I have no doubt such a strategy would involve the UN behind the scenes leaning on the ICC to do the right thing–were the circumstances to so warrant.

In a nutshell, this is the answer to your question how these cases can be brought home.

Anyone who does not have or will not give even the outlines of an answer should stay off the subject.  (Yes, that’s for Raila.)

Is it really necessary to say this?

The ICC is the best place to try these characters, and all upright Kenyans are fully behind the ICC trials.

This is an unnecessary besmirching of those with valid views and take the position these cases should be tried at home.

It doesn’t mean one is upright or crooked merely by taking a position on this question people can take either position without any ill-motive or intent.

So, let’s stop the side-shows and get on with it.

There is no side-show here; what we have and should have is a robust debate as to the meaning and implication of these ICC cases.

No one has the right and only correct answer or take but it’s through informed debate people can assess and come to terms with this very sensitive issue.

 
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Posted by on December 9, 2012 in Politics

 

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What ICC Outcome Means For Kenya

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In What ICC Outcome Means For Kenya, published in the Star today, I revisit the ICC issue and analyze it from an historical and comparative perspective and make the case we should not seek or desire a solution that makes the situation worse than it is. I in particular urge all Kenyans and in particular the victims to be prepared to forgive and move on for it’s unlikely there will be an outcome from these trials that satisfies all to the same level of satisfaction.

In other words, in order for justice to be deemed as having been served, both Uhuru and Ruto must be convicted.

If one and not the other is acquitted while the other is convicted, we’ll have a situation as often occurs in medicine where the cure is worse than the ailment in the sense that this will worsen the already bad blood between two communities in particular while dividing the country as a whole as others take side.

On the other hand, if both or all suspects for that matter are acquitted, many will cry foul or at least see the whole ICC things as a joke or meaningless.

I have in the past argued that these cases should be brought back to Kenya and set up a system for the victims to be tried for regular crimes they may have committed under the Penal Code and if not convicted under the higher threshold of proof for criminal conviction, they can be tried under civil law and if found liable be required to pay monetary compensation to the victims.

After these two suspects, namely, Uhuru and Ruto had the audacity to basically flip the whole country and, indeed, the whole world and declared that they will seek both the presidency and vice-president as the respective candidates for those positions under their recently formed so-called Jubilee coalition, I have changed my mind and now hold the view let these trials go on at the ICC and let these two be convicted if anything to show it’s the law and respect of others’ human rights which is paramount, not them.

Put another way, if in the past one could have assessed the evidence and found it possible to go either way in terms of whether to convict or not, these in your face “we are too important to be bothered with these trials we deem to be a nuisance and nobody can tell us otherwise” attitude must tilt the scale in favor of convicting them just so they know and understand they are not.

 
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Posted by on December 8, 2012 in Politics

 

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Many Depressed Over Raila Winning Coalition

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In Raila’s Coalition Will Carry The Day, published before Raila announced his teaming up with several notable politicians, including Wetangula, Musyoka and Ngilu, I noted Raila will once again put together a winning coalition much as he has previously done and not a single coalition he has put together has failed to meet it its objectives; on that count, he is 4 for 4 but now make that 5 for 5 because there is no doubt CORD will carry the day come March 4, 2013 as it has everything going for it and therefore the thing is theirs to lose.

The other side (read Uhuruto) or the so-called “Third Force” can’t say the same thing.

In fact, the former duo is burdened with heavy loads of unwanted baggage they must first offload before even becoming close to being something of a force to reckon as CORD is now.

They may fool some of their supporters they have something going, but the reality is they don’t.

You cannot possibly have two suspects of crimes against humanity making the case what they are doing is not all about themselves and their escaping the hangman’s noose than it is anything to do with the country or even those they are busy hoodwinking and lying to in hopes of securing their vote.

Much more and even one can say comfortably a vast majority of the country doesn’t buy and won’t buy the bunk and that’s a good thing because doing otherwise will throw our country in reverse gear in all measures that matter, including our reputation mostly as a peaceful nation and one that has now embraced reforms to usher us in a new direction that can only be reversed in the unlikely event the ICC suspects are elected.

Because of realization of this fact, namely, that Raila has once again formed a formidable coalition, the mood on the ground among Raila haters and/or non-supporters, especially the former is extremely gloomy and depressed.

Ditto on the Internet forums where even the most avid Raila hecklers have gone silent not knowing what to say as they witnessed formidable formation of this very powerful, convincing and genuinely people’s coalition that shall obviously carry the day come election day.

This even as Raila and ODM have yet to officially launch the 2013 campaign and what a site that’s going to be!

When the going gets tough, the tough get going.

That’s what Raila and ODM have done and are good at everyone else are amateurs incapable of mounting such a toughness to weather the storms as Raila has and now look where he is headed.

State House.

 
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Posted by on December 5, 2012 in Politics

 

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Al Jazeera Headline Says It All: “War Crime Suspects In ‘Kenya Poll Alliance'”

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Every once in a while, all of us either have or know someone who does or has done something that leaves one wondering why or how could someone do such a dumb thing. That people do dumb things is therefore not all that much surprising or rare.

What is always surprising and rare is where people do really, really dumb things, especially those flying in the face of common sense resident in a child barely old enough to know something like that is dumb.

What Uhuru and Ruto have done in joining hands to vie for the presidency when both are charged with serious crimes against humanity committed against the very people they purport to want to lead, is very, very dumb.

It’s also wrong.

The Al Jazeera headline “War Crimes Suspects In ‘Kenya Poll Alliance’” says it all.

If a reputable and neutral news organization like Al Jazeera can splash an headline like this, can one imagine what it would be like were the country to be so unfortunate as to have this duo elected as president and deputy president?

That’s an outcome no one who loves or care anything about our country should not ever even as entertain the thought.

To be sure, the Constitution does not expressly bar these two from vying for public office but there is a case pending challenging their eligibility it’s likely the Supreme Court will have to look with a magnifying glass at the law and many hope the court will be able to find a basis to bar them from vying.

Whether they are barred by law or not, basic wisdom or common sense for that matter dictates that these two should abandon their presidential ambitions and focus on defending against these serious charges they face.

We simply cannot have a situation where our president and his deputy are both out of the country defending themselves against serious criminal offenses!

Are these two out of their minds?

What makes them think they are so indispensable in vying for the presidency they must do it regardless of what the implications are in the unlikely event they are elected?

There is no doubt the two are united not just in crimes they are accused of, but also in their dogged determination to “stop” Raila from being reelected but this time sworn as president.

But surely even with that there has to be a point beyond which it makes no sense for these two to pursue this bone-headed strategy of putting themselves first, country second!

On the other hand, and now speaking as a Raila and ODM supporter, let them go full throttle with this ill-advised strategy as it provides an even starker distinction between them and Raila/ODM.

In essence, the case to be made by Raila is the country must make a choice between the following, given what is known and indisputable as facts:

Do we want a country governed by a president and his deputy both of whom must be out of the country in significant and extended periods of time tending to their trials for the serious crimes against humanity they face or do we want a president and his deputy spending 100% of their time trying to resolve the myriad of problems our next president and leadership must address to put our country back on track to peace and prosperity?

Do we want a country its president is convicted and hauled to jail or one who is convicted but thumbs his nose on the ICC turning our country into a pariah nation like Sudan whose president is a fugitive wanted by ICC and is accordingly constrained as to what he can do as a country leader?

Do we want our country to become a laughing stock for even seriously considering to vote for two individuals suspected of having masterminded crimes against humanity in which thousands of innocent Kenyans were hopelessly slaughtered in cold blood and hundreds of thousands of others displaced, or do we want the country returned to its glory past, even better?

Do we want a president and his deputy who are committed to full implementation of the constitution, or do we want one who is not as it’s not in their selfish interests and the interests of their cronies to do so?

Do we want an end to, or at least an effort to significantly reduce corruption and an end to impunity or do we want to maintain status quo or worse as to these two diseases that have so impeded and chocked our country’s economic development?

These are the choices the country must make come 2013.

Representing one side are these two crimes against humanity suspects, Uhuru and Ruto and on the other side shall be Raila and ODM.

There is talk of the “third force” representing the middle but let’s be realistic, there is no chance in hell they each get 20 votes even in their own backyards, given the two sides named above everyone is resigned to be the face-off in 2013.

If Kenyans vote on the basis of answering and making a choice between the foregoing, there is no question which way they should vote and who shall stand to gain and that’s, all of us.

Going the other way can only but assure us a backward regression of our country in every respect and that’s not something anyone of reason and objectivity can or should stand for, which means the Uhuru and Ruto duo team must be rejected.

The good thing is, we have been here before where Kenyans smelled a rat and said heck no, we just need to do the same thing again come March 4, 2013.

That shall come to pass for the good of our beloved country.

Amen.

 
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Posted by on December 3, 2012 in Politics

 

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Raila’s Coalition He Is Putting Together Will Carry The Day Come Election Day 2013

In Raila’s Coalition Will Carry The Day published yesterday in the Star, I examine the issue of coalition building in Kenya and conclude based on his past and proven record, Raila shall once again put together the winning coalition to carry the day come election day and see him sworn as our next president.

 
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Posted by on December 2, 2012 in Politics

 

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