2018 and Kenya’s Electoral Justice

Published on 2nd January 2018

A year that has been difficult in nearly all fronts has come to an end. Kenyans preserved a dysfunctional economy and an all-time high cost of living that was coupled with the disappearance of basic commodities like unga from stores. The situation was worsened by a bitterly contested and eventually rigged sham election that left a trail of death in the hands of security forces and a regime with massive legitimacy deficit. On behalf of NASA family, I salute Kenyans for the resilience and perseverance. I join you in looking forward to a better year and a better nation.

In 2018, our work is clearly cut out for us. After three stolen elections in a row and the standoff that has ensued, ending the culture of sham elections with pre-determined outcomes must be the nation’s priority. We must nip the new trend where people continue to vote, opposition is allowed to exist and win a few seats in parliament, but the vote does not really count. Kenya will not stand stolen elections for long. Sham elections brought Kenya on its knees in 2007.

Nobody has been punished for the rigging and the killings that followed. The fraud of 2017 has equally come with killing of Opposition supporters but has also seen mounting calls for secession and even talk of war. This is a new and worrying development. The very existence of Kenya as we know it is at stake. Millions of our citizens do not recognize the regime ruling them and they do not believe that Kenya cares about their views and feelings; hence the secession talk. Yet the regime thinks it can beat and kill citizens into surrender.

We are better than being a nation making history for all the wrong reasons. We made history with the nullification of August elections. The annulment of the August 8 presidential election by the Supreme Court was only the fourth such event in world history.

In all the three countries polls have been nullified, the repeat election registered similar or higher turnout than the nullified one and the nullification resulted in a better not worse election.

In Ukraine the voter turnout in the repeat election was 77.3 per cent. In the Maldives, repeat election turnout was 87 per cent in the first round and 91.4 per cent in the run-off. In Austria, the turnout in the repeat election was 73 per cent. Here in Kenya, even after cooking the turnout figures, Jubilee could not do better than 38 percent.

In reality, the turnout was closer to 20 percent. Then we proceeded to make history by being the only country where the repeat election was again challenged in court for being a sham. The Supreme Court then proceeded to uphold the result of the election despite the fact that the very same court failed to hear a case challenging the very election it was upholding. All this just because we have a clique that fears fair play and want to hold onto power by every means and at all costs. We have to fix it.

Our struggle for electoral will go hand in hand with strengthening of the Judiciary and reforming the security sector. The idea that an incumbent can steal elections then unleash police to beat citizens into accepting the electoral theft must end. So far, the mindset is to steal the election, suppress and subdue protesters into submission by killing them then they will accept, forget and move on. This has been the case in all the three stolen elections.

Fortunately, our citizens believe they have reached a point of no return. They see D-day for electoral justice. Nobody is moving on. Voters say it is now or never. Kenyans want electoral justice where elections mean real choices not mere rituals and every vote counts. We have come through the worst when it comes to sham elections. In 2018, we must launch a major effort to secure the best electoral system.

We cannot secure electoral justice and democracy if we don’t strengthen and protect the Judiciary. Democracy thrives on the rule of law. It requires that we must have an independent judiciary and judges with the integrity and character to make decisions independent of the political happenings and thinking of the time. We must end the idea that the Judiciary exists to support incumbents in their conspiracy against the voters.

Our future is bleak if we stand by as judges are intimidated and blackmailed by an imperial presidency trying to rise again. There is no democratic nation where the president can refer to judges of the Supreme Court as crooks and coup plotters as happened in Kenya after the Supreme Court nullified Uhuru’s fraudulent win. That is a call to anarchy and ground for possible impeachment. It did not come as a surprise to Kenyans that acting under extreme pressure from the Presidency, the Supreme Court eventually rendered a unanimous ruling upholding the re-election of Uhuru Kenyatta. That ruling came against the background of failure by the same court to hear a case that sought to stop the election altogether. The Supreme Court could not raise a quorum to hear the case and to date, it remains unclear how the Court intends to deal with the case it failed to hear on the same election it upheld. What happens if this failure to raise a quorum for whatever reason becomes a trend in all politically sensitive cases? Either we fix these things soonest, or we may very soon not have a nation.

We must strengthen and protect devolution. This most important structure Kenyans ever gave themselves since independence is being stifled by the National Government through late and irregular disbursement of funds and the extension of the old network of provincial administration to rival and undermine county governments.

The source of all these problems is in the Executive; the presidency to be precise. This has to be restructured to conform to the changing dynamics in our country. The imperial presidency that we sought to contain is rearing its head again, interfering with and intimidating other institutions. We cannot stand by and watch as the monster rises again. Soon, it will be too late.

NASA has two ways to realize these goals. We can sit down on the negotiating table with our Jubilee opponents and discuss how to fix our electoral system, reform the executive, protect the Judiciary, reform the security sector and strengthen devolution. We are ready for such dialogue as long as these issues are on the table. Alternatively, we take the issues to the people and let them decide without the involvement of the State.

By Hon. Raila Odinga

NASA Principal and Former Prime Minister of Kenya.

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