Can courts re­ally re­solve our deep­en­ing con­flict?

The East African - - OPINION -

As should have been an­tic­i­pated, the process and out­come of the “fresh” pres­i­den­tial poll are be­fore the Supreme Court. No less than three pres­i­den­tial pe­ti­tions have been filed. Two pe­ti­tions — from Harun Mwau on the one hand and Khelef Khal­ifa and Njonjo Mue from the um­brella Kura Yangu, Sauti Yangu on the other — have to do with the In­de­pen­dent Elec­toral and Bound­aries Com­mis­sion. The last pe­ti­tion has to do with the ac­tions of the op­po­si­tion Na­tional Super Al­liance.

Read the sub­mis­sions of KYSY in de­tail, the ar­gu­ment is sim­ple. That, con­trary to Supreme Court orders from Septem­ber, the IEBC failed (yet again) to con­duct the poll in con­form­ity with the Con­sti­tu­tion and the law. The evidence? The IEBC’S dis­re­gard of the with­drawal of the Nasa can­di­date, which should have trig­gered a new elec­toral process. Which also dis­re­garded the place of po­lit­i­cal par­ties — in this case, Nasa and its con­stituent par­ties — which should have been en­ti­tled to a sep­a­rate au­di­ence and af­forded the op­por­tu­nity to re­place their can­di­date through a new nom­i­na­tion process.

Then there was the con­sti­tu­tion­ally in­suf­fi­cient and dis­crim­i­na­tory time af­forded for cam­paign­ing re­sult­ing from the IEBC’S flip-flop­ping around who would or wouldn’t be on the bal­lot.

Given the al­leged sab­o­tage of the “fresh pres­i­den­tial elec­tion team” within the IEBC, the pri­vate de­ci­sion-mak­ing of four com­mis­sion­ers, the threats and in­tim­i­da­tion of com­mis­sion­ers by po­lit­i­cal ac­tors, the lack of dis­ci­plinary ac­tion against staff re­spon­si­ble for the Au­gust pres­i­den­tial poll and the IEBC’S fail­ure to au­dit the in­for­ma­tion tech­nol­ogy sys­tem and con­duct qual­ity as­sur­ance, the op­er­a­tional and ad­min­is­tra­tive in­de­pen­dence of the IEBC was com­pro­mised.

The KYSY pe­ti­tion there­fore calls for an­other dec­la­ra­tion to the ef­fect that the poll be ren­dered null and void, that the dec­la­ra­tion aris­ing be sim­i­larly ren­dered null and void and that an­other poll ad­min­is­tered by an elec­toral man­age­ment body ad­dressed by the Supreme Court be or­dered. In ad­di­tion, it calls for a dec­la­ra­tion to the ef­fect that the un­con­sti­tu­tion­al­i­ties of the elec­toral law amend­ments be voided.

We wait to see what the Supreme Court does with this and the other two pe­ti­tions. As­sum­ing, that is, that the Chief Jus­tice can com­mand a quo­rum. And that what­ever in­de­pen­dent spirit the Supreme Court Jus­tices went into the first ad­ju­di­ca­tion with re­mains in­tact given the im­mense amount of pres­sure they have been sub­jected to ever since.

The big­ger moral of the story is, how­ever, whether ad­ju­di­ca­tion of this par­tic­u­lar elec­toral con­flict is the best way for­ward. As Nasa pro­ceeds with its civil dis­obe­di­ence cam­paign — the boy­cott of cer­tain com­pa­nies, its push for Peo­ple’s As­sem­blies at the county level al­ready un­der­way and its pub­lic protests set to re­sume — it seems clearer than ever that ad­ju­di­ca­tion alone can­not re­solve the op­po­si­tion and pub­lic anger that per­sists.

Other op­tions re­main on the ta­ble. Di­rect ne­go­ti­a­tions be­tween the two par­ties. Or me­di­ated ne­go­ti­a­tions.

We wait to see what the Supreme Court does with these pe­ti­tions. As­sum­ing the CJ can com­mand a quo­rum

L. Muthoni Wanyeki. PHD, is the Africa di­rec­tor of the Open So­ci­ety Foun­da­tions. Muthoni.wanyeki@openso­ci­ety­foun­da­tio

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