One of the saddest aspects of the post election nightmare is that every utterance or statement is scrutinised with suspicion by just about everyone in Kenya. As the middle ground disappears, even non-Kenyans are forced to take sides as the battle lines are drawn. In such a highly polarised environment, the wise man might well be advised to keep his mouth shut and only reveal his heart to the Almighty. Yet, the crisis that faces the country demands that we all search for solutions that can bring hope and encouragement. What we have watched on TV are events that we will recall for decades with outrage, horror and disgust. Our dignity and our innocence have been violated before our eyes by an inept, incompetent and disgraced electoral commission. THE ANGRY REBELLION ALL OVER the country was a spontaneous reaction to a vicious assault on the voter’s choice and voice. While the ECK chairman, Mr Samuel Kivuitu, claims he does not know if Mwai Kibaki won the election, no one knows for sure whether Raila Odinga won either. All we can say with certainty is that Kalonzo Musyoka lost miserably but recovered quickly to pick up the scraps. He now serves in a government that may be legally in place, but lacks legitimacy. So we face the prospect of being ruled by a government that is deemed illegitimate at home and lacks credibility abroad. Whatever happened to our nascent democracy? Were we naïve to imagine that our votes were important, or that ultimate power rested with the people? What the December 27 election proved beyond doubt is that democracy without constitutionalism is simply ethnic majority tyranny. We may possess an energetic civil society, a courageous media, a host of freedoms and a growing economy, but we are still governed by a constitution designed to facilitate a one-party or single-ethnic community dictatorship. For two decades, we have laboured to create a Constitution that protected and promoted human rights; that freed the Judiciary and Legislature from the excesses and whims of the Executive; and that produced legislation that would dismantle the colonial authoritarian structures and replace them with institutions that were accountable and effective. But our efforts have not borne fruit. There was a “Constitutional Moment” in 1997 that was snatched from wananchi by the political class under the guise of the Inter-Parties Parliamentary Group (IPPG). They have now returned it to its rightful owner since. The Bomas farce and the referendum fiasco were just opening rounds in a battle for power that reached its climax on December 27. The events of the past few weeks confirm that without constitutionalism, our politicians can reduce the country to ruins and deny us even the few freedoms that we thought were inherent and guaranteed rights. We are in a crisis that is recognised by everyone except a small powerful clique who are currently in denial. We have frequently heard that the best constitutions are made in times of crises. How much deeper must we sink before the protagonists acknowledge that our biggest crisis is constitutional and not merely political or ethnic? LET US FIRST ADMIT IT IS A FUTILE exercise to attempt to revisit the tallying as the ECK has had over three weeks to complete their dirty work. There are genuine demands for a repeat presidential vote, but how satisfactory would that exercise be as the ethnic arithmetic and voting patterns have changed dramatically? An early repeat election would satisfy no-one and leave us just as divided, regardless of the outcome. Many have called for the immediate establishment of a Truth, Justice and Reconciliation Commission as recommended by the Makau Mutua task force. Commissions of this nature, however, should follow constitutional settlements rather than precede them. It would appear then that the only viable and realistic option is for the country to endorse a power-sharing transitional government, whose chief mandate would be to complete the constitutional review process within 18 months and pave the way for elections in two years time. Fr Dolan is a Catholic priest based at Bangladesh Parish, Mombasa, and a board member of Independent Medico-Legal Unit (Imlu). | 
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