The thin line be­tween elec­toral cred­i­bil­ity and po­lit­i­cal sta­bil­ity in Kenya

Daily Nation Newspaper - - FEATURES 21 -

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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