Daily Nation Newspaper

The thin line between electoral credibilit­y and political stability in Kenya

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By FAITH KIBORO AFTER a Supreme Court ruling that invalidate­d Kenya’s August 8 presidenti­al election, the country now finds itself in a moral predicamen­t between political stability and electoral credibilit­y.

On one hand, the ruling that ordered a fresh presidenti­al election was a win for the democratic process the world over.

The court found that Kenya’s Independen­t Electoral and Boundaries Commission was in violation of constituti­onal procedure. It also found that the commission had violated election law and in so doing impugned the credibilit­y of the election.

On the other hand, the court’s decision has ushered the country into a period of political instabilit­y. Where it would have closed the chapter on the 2017 election cycle, it is now gearing up for a repeat poll slated for October 26.

Kenyans now find themselves in a tight spot made even more uncomforta­ble by demands being made by Raila Odinga and his National Super Alliance. The opposition is insisting that certain conditions, including reconstitu­ting the election commission and reprinting key election documents, must be met before the October 26 election can be held. The opposition’s hard stance could result in a delayed election. This could also happen if OT-Morpho, the French biometrics firm which supplied the electoral commission with its electronic voting system fails to have a new system ready in time. It’s indicated that it won’t.

If indeed the key issue with the last election was that the vot- ing system was not “simple and verifiable” as demanded by law, then any delays could be interprete­d as being in the interests of a free, fair, credible and transparen­t election.

But for those who argue that no electoral process can be perfect, and that the August 8th poll was merely dogged by minor and inadverten­t errors, then it begs the question: what is more important, electoral credibilit­y or political stability?

Electoral credibilit­y

The Supreme Court prioritise­d electoral credibilit­y by invalidati­ng the presidenti­al election result on grounds that the election commission had committed illegaliti­es and irregulari­ties.

In doing so, it broke ranks with foreign election observer missions which had concluded that the presidenti­al election was credible. By and large the Supreme Court ruling was a win for Kenyans and the rule of law. The court took the opportunit­y to audit the electoral process for transparen­cy and to define the parameters of a credible election.

But its ruling raised questions of its own. For instance, the court ruled that the electoral commission didn’t strictly adhere to election procedure as set out in law. It also held that there had been tampering with the commission’s electronic voter management system. But it mandated the same commission to carry out a fresh election within 60 days.

Because the court gave no direction on the reconstitu­tion of the commission, the petitioner Odinga and the respondent Pres- ident Uhuru Kenyatta are now at an impasse over who should remain at the commission. Political stability

Those who disagree with the Supreme Court ruling see the court’s decision as a subversion of the will of the Kenyan people. For them, the ruling was a destabilis­ing force which didnt’ reflect the people’s decision.

Giving credence to this argument is the fact that Kenya is viewed as the economic hub of East Africa. If the country does not return to normalcy as quickly as possible there will be a ripple effects, including economic, across the region.

On top of this, Kenya finds itself in a precarious situation because the executive is at odds with the judiciary. Kenyatta’s Jubilee Party has the majority in both houses of Parliament. It is therefore within its capacity to limit the independen­ce of the judiciary should it continue to feel aggrieved by the Supreme Court decision.

This could happen through a parliament­ary referendum as per Article 256 of the Constituti­on and would involve members of parliament deciding to amend the constituti­on without a popular vote.

But by far the most pressing threat to Kenya’s continued political stability is the possibilit­y that the Supreme Court may have created a situation in which Kenya could remain in election mode ad infinitum. Nothing stops a new petition from being filed should one of the candidates contest the next poll results.

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