March 18, 2013 Mad Hatter

MANAGE EXPECTATIONS: THE PRESIDENTIAL PETITION MAY OFFER REAL DISAPPOINTMENTS:

“Yet there are multiple polling stations alleged to have recorded an over 100% voter turnout. The CORD legal team may have relative ease bringing the outcome below the constitutional threshold. If that were to happen, any other consideration notwithstanding, either a run off or a re-run will be occasioned. If either of the outcomes was to pass, for one will certainly pass, is the Kenyan public being prepared to first accept the outcome and secondly face the consequences?”

Kenya does firsts in many ways, and just again, we are the first country on the African Continent to file a petition challenging presidential outcome in a supreme court with real chances of success. This comes in after we were the first country in the history of democracy, to record an 86% voter turnout. And just as expected, the two major factions are offering incredible inspiration to their supporters. One thing that has awed many pundits is just how much political energy this country has, reminds me of the South Korean airline thing.

A presidential petition takes politics to the table of law. And while the two are not strange bedfellows, mediating political conflicts with the law has never been an easy task. And this is as hard as it can get. In the words of Larry Madowo, I do not envy a Supreme Court judge. The reality of this petition, in my opinion has not been given adequate national conversation as it should. Its implications, merits and more importantly consequences should it be decided either way. There is a real chance that the petitioner may lose the petition and the president elect sworn in. Precedence globally shows that overturning a presidential election is pretty a herculean task.

In particular, complainants need to demonstrate systematic and real sabotage of the electoral system to the advantage of the winner. We can only speculate, whether the CORD alliance has such. The other aspects are the extra legal considerations that will certainly come into play. And those who have keenly looked or analyzed any judicial decision issued, directly affecting the electoral process, these have had a firmer role than the law. It should not be lost on observers, that a week to election, the supreme Court allowed the candidature of Uhuru Kenyatta, Raila Odinga and William Ruto with the promise of releasing their reasons after the election. In some instances, the judiciary has ‘colluded’ to afford the electoral management body operational convenience.

Consider the decision on boundary review; it was conveniently rendered on the last day permitted by the law to ensure no possibility of appeal. In other instances, the jubilee luminaries have but manage to accord decisions of the court to what would appear ‘popular opinion.’ I read a decision of the high court, on why it thought it did not have jurisdiction to determine the suitability of the UhuRuto candidature, bits of it sound like a redraft of political campaign rhetoric, just a pointer that our judges watch news.

Then there is the heavy aspect of public interest. For instance, what would be the implications of finding the voter register illegal? Whether the alterations were justified, (they may be) there is the undeniable aspect that subsequent alteration after official gazette notice was illegal. Would a finding be made that the register is illegal, if it were to be so, would the whole electoral process be a nullity, would the judiciary affirm such a prayer that may lead to every loser filing a petition? Equally, the jubilee has tried to push the impression that a lot of water has gone under the bridge. Indeed, a silent legal principle exists where the law may excuse an illegality if there will be extreme interruption of the status quo to the disadvantage of the society.

With the president elect having met constitutional office holders, and set a working pace, met the private sector, briefed on security matters in accordance with the law, received congratulatory messages from some of our ally states, might it be better to find that sure, we need to review a couple of failures in our electoral system, but have the president sworn in? On the other side, the thread that needs to be broken to render the declaration of Uhuru as president elect an illegality is exceedingly small, barely 5000 votes. CORD may need only to demonstrate that over 5000 votes were illegally given to Uhuru to make the declaration a nullity.

Reliably, I am informed that their legal team believes it can demonstrate way beyond that. Investigators who have combed the tallying process seem capable of pin pointing how the tally was inflated. The civil society seems to have evidence that indeed there was inflation. If that were to be proved, it would bring the results below the now famous 50%+1 mark. This informs why Dennis Itumbi and Moses Kuria went to Court to seek a determination that spoilt votes should not be included in the final tally. You would understand the interest behind this push that matter, in my opinion, betrays a certain level of panic. There is also evidence of relative reducing of the Odinga Vote which may make the 5000 margin above even lower.

Yet there are multiple polling stations alleged to have recorded an over 100% voter turnout. The CORD legal team may have relative ease bringing the outcome below the constitutional threshold. If that were to happen, any other consideration notwithstanding, either a run off or a re-run will be occasioned. If either of the outcomes was to pass, for one will certainly pass, is the Kenyan public being prepared to first accept the outcome and secondly face the consequences?

Unlike many countries, political leaders are the most trusted lot in Kenya.Yes, forget the occasional pretentious complaints we give, if Uhuru or Raila were to say they do not have confidence in the court system, even the most top of the elite would skew their opinion to agree to it. While both Odinga and Uhuru have indicated they will respect the courts verdict, will their supporters agree? Indeed, we have seen several instances where the two leaders are prisoners of their supporters’ interests. What is the implication of the court disagreeing with the petitioners? Is Kenya willing to keep faith in a judiciary that will certainly hurt part of their feelings?

In other places, when a Supreme Court rules against political interest, there is deliberate intrusion, it has been seen in the US. Will either determination assert the court’s position in Kenya or open a fury and incentive for political frustrations and public distrust? I guess it will boil down to you my reader, are you ready to celebrate our institutions when they act to your inconvenience?

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