Supreme Court, IEBC and why po­lit­i­cal cri­sis won’t end soon

Daily Nation (Kenya) - - OPINION -

There is lit­tle doubt that the next weeks will be bring im­mea­sur­able pres­sure on the judges of the Supreme Court as they delve into yet an­other cy­cle of elec­tion pe­ti­tions fol­low­ing the sham polls of Oc­to­ber 26.

Of course it need have got­ten to this had the In­de­pen­dent Elec­toral and Bound­aries Com­mis­sion (IEBC) done its job well, and had it sought the Court’s guid­ance fol­low­ing the with­drawal of Mr Raila Odinga on Oc­to­ber 10, us­ing the same laws it had used in gazetting just two can­di­dates for the re­peat polls. But IEBC, it de­cided to vote — yes vote! — on le­gal in­ter­pre­ta­tion among its Com­mis­sion­ers with only one of them be­ing a lawyer! The eas­ier thing would have been to seek guid­ance from the Supreme Court but they de­cided against that on un­clear — but cer­tainly not le­gal — ba­sis.

It need not have got­ten to this had the IEBC taken time to re­flect on why the pre­vi­ous polls were an­nulled and got­ten all sides to the table to dis­cuss how to rem­edy the sit­u­a­tion. Yes, IEBC is sup­posed to be in­de­pen­dent, but in­de­pen­dence of an in­sti­tu­tion is not “splen­did iso­la­tion.” In­de­pen­dence does not mean no con­sul­ta­tions and no ac­count­abil­ity.

And it need not have come to this had the Supreme Court raised the req­ui­site quo­rum to hear the ur­gent ap­pli­ca­tion to put off the elec­tions on Oc­to­ber 25. The lack of quo­rum was as his­toric as its Septem­ber 1 de­ci­sion, and we are not any clearer what caused the ab­sen­teeism.

That lack of quo­rum raises more is­sues now. Will the Supreme Court raise quo­rum this time? A lack of quo­rum could mean re­tain­ing sta­tus quo and, given the di­vi­sions in the Court’s de­ci­sion last time and with one Judge in­dis­posed, it could well be that only four show up. Or it could be that what­ever caused the lack of quo­rum — which is the sub­ject of con­jec­ture and ru­mors — has caused fear and in­tim­i­da­tion enough.

But it would be highly un­seemly if judges did not show up on a mat­ter of this mag­ni­tude; and more­over, the Chief Jus­tice could al­ways in­voke the doc­trine of ne­ces­sity given the weight­i­ness of this mat­ter and pro­ceed with who­ever is avail­able.

Nev­er­the­less, it is likely that IEBC and Ju­bilee — which have never dis­agreed on mat­ters le­gal and pol­icy — and the At­tor­ney Gen­eral, if ad­mit­ted as am­i­cus cu­riae, will ar­gue that it is in the pub­lic in­ter­est not to an­nul the re­run polls given the cost and ten­sions in the coun­try, the clas­sic “ac­cept and move on” ar­gu­ment.

They will ar­gue, as reporter Sam Kiplagat of Daily Na­tion ar­gued on Novem­ber 8 head­lined ‘Eyes on Maraga as fresh pres­i­den­tial elec­tion dis­puted’ that “… the Supreme Court must de­cide whether to up­hold the re­sult or or­der an­other elec­tion in 90 days and pro­long the po­lit­i­cal cri­sis that has paral­ysed the econ­omy and strained eth­nic re­la­tions. Some Sh12 bil­lion was spent on the re­peat elec­tion and more money will be needed in case it is nul­li­fied.”

This is a disin­gen­u­ous and dan­ger­ous ar­gu­ment be­cause it sup­poses that sham elec­tions are in the pub­lic in­ter­est and what Kenya re­quires is any sort of an elec­tion, rather than a cred­i­ble, free and fair one. And that ar­gu­ment, wrongly, and per­haps de­lib­er­ately so, as­serts that elec­tions are the source of the cri­sis and di­vi­sions in the coun­try.

Noth­ing could be fur­ther from the truth. The rea­son elec­tions are so volatile is be­cause they are not trans­par­ent, nor are they fair, free and cred­i­ble. Rather than be a process that can get Kenyans fo­cused on the next five years with a le­git­i­mate gov­ern­ment that unites us, elec­tions are about those in power re­tain­ing it no mat­ter what, and in so do­ing ex­ac­er­bat­ing di­vide and rule tac­tics with prom­ises of good­ies and re­wards to those who sup­port the regime.

If the Supreme Court uses the prece­dent of its his­toric rul­ing in Septem­ber, there can be no out­come other than nul­li­fi­ca­tion. And I sus­pect the regime knows that, too, hence the un­leash­ing of its at­tack dog Fazul Ma­hamed on NGOS sus­pected to be work­ing on a pe­ti­tion on spurious and laugh­able grounds, as well as the cut­ting of power lines to Kat­iba In­sti­tute, which is one of the tar­geted groups.

MAINA KIAI Rather than be a process that can get Kenyans fo­cused on the next five years with a le­git­i­mate gov­ern­ment that unites us, elec­tions are about those in power re­tain­ing it no mat­ter what, and in so do­ing ex­ac­er­bat­ing di­vide and rule tac­tics with prom­ises of good­ies”

Maina Kiai is a hu­man rights ac­tivist and co-direc­tor at In­for­ma­c­tion. mkiai2000@ya­hoo.com

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