Otieno's 'Inky, Pinky, Ponky' moment that might decide the next poll date

Lawyers find clever ways to explain almost anything and to upset accepted beliefs and traditions. Kenya has its share of lawyers who leave their mark on the socio-political landscape. Among them is Willis Otieno, the lawyer who in the 2022 presidential election petition attracted attention with his ‘Inky, Pinky, Ponky’ remark to advance Raila Odinga’s claim that he did not lose the election to William Ruto.

He is at it again now arguing that the next presidential election should be in August 2026 rather than in 2027. It all depends on what the courts decide as to when Kenya’s election calendar begins. Since it has four options, it is a matter of inky, pinky, ponky.

In the 1990s, led by Korwa Adar and Kilemi Mweria, university lecturers went on strike demanding UASU registration as a union. As student leaders like Kabando wa Kabando cheered, numerous lawyers volunteered their services and were present on the day of dismissal. Assembled at University of Nairobi Senior Common Room, they exchanged messages with Vice Chancellor Francis Gichaga. They decided to seek refuge in the courts but no judge was willing to entertain the request. One judge pleaded with UASU lawyer Paul Muite, “You understand, Paul”.

Some judges understood and even joked with the lawyers. Eventually the registrar found a judge to listen to the petition in the evening. Mr Muite led the team to see the judge who issued an injunction against evictions from houses but not AGAINST dismissals. When the team returned to the High Court, the registrar asked why there was no injunction against firing. By then, Gachaga had fired UASU officials. That injunction became the basis of court cases.

The drama was in the Court of Appeal. Although it was a simple appeal, Chief Justice Fred Kwasi Apaloo led the full bench which prompted Pheroze Nowrojee to ask what was going on. The court was full and legal wizardly was plenty enough to impress James Nyikal, then the UASU official representing the Medical School, to wish he had studied law instead of medicine.

Political vacuums

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When Apaloo issued his anti-UASU ruling, a lady lawyer remarked “We have laws, we have courts, but we have no judges.” Some of those who grumbled about the decision quickly apologised to avoid contempt citation. Media people Bedan Mbugua and David Makali, however, refused to retract and ended up in Manyani thereby reinforcing the view that judges, as one judge once remarked, do not live in political vacuums.

Similarly, the lawyers do not live in political vacuums and were heavily involved in crafting the 2010 Constitution which left enough constitutional loopholes and contradictions to keep the lawyers and judges busy interpreting what chapter this and clause that meant when linked to chapter that and clause this. There have been three presidential election petitions, each side bringing their best legal guns.

The 2017 petition, which appeared like an afterthought, was attended by judges from other African countries, and the Kenyan judges nullified the election of Uhuru Kenyatta on account of procedure rather than results. They ordered a repeat election which Uhuru still won. In the 2022 petition, lawyers again displayed legal wizardly with Otieno entertaining with “Inky, Pinky, Ponky”.

Otieno is back suggesting changes in the election calendar. The first of the four possible options would have the calendar begin on the day after the election and the second would have the calendar start after the announcement of the presidential results. The two would reduce the presidential term to four years.

The third option, starting the calendar after the Supreme Court decision, and the fourth option, using the inauguration day as the start of the election calendar, would retain five year presidential term. In trying to convince judges either to reduce the presidential term to four years or to retain the five years, lawyers will be ingenious. Judges will then decide which option is inky, pinky, or ponky.