Kenya’s Supreme Court in session during the 2017 presidential petition.
The repeat election could end up in another petition. PHOTO | AFP
Kenya’s President Uhuru Kenyatta was set to be declared the
winner in an election in which he had virtually no competition after the
opposition National Super Alliance (Nasa) withdrew the candidature of
Raila Odinga and Kalonzo Musyoka.
However, the repeat
election of October 26, has been described as a divisive exercise that
could be followed by protracted political and economic instability.
The
election was marked with a low voter turnout of 35 per cent, boycotts
and violence in some opposition strongholds that have claimed at least
nine lives since October 26.
Civil society players say
the president could face a credibility challenge, while Mr Odinga’s
supporters will be disgruntled and feel disfranchised.
Aly
Verjee, a research scholar at the US Institute of Peace, says that in
the current scenario where a half of the country wants a different
political leader to the one they have, President Kenyatta has a choice
to meaningfully reach out to his opponent, his allies and supporters,
and accept the hard path of reconciliation and dialogue, or pursue
confrontation.
Mr Verjee said that President Kenyatta’s victory would be marred
by the choice millions of Kenyans made to not participate in the most
basic, fundamental exercise of democracy.
“It is
marred by the reality that without Odinga, the election was not a
contest. With a significant number of polling stations in various parts
of the country unable to open, either due to a lack of electoral staff
or because of precarious security conditions, the legal and political
legitimacy of the election was further eroded,” he said.
Post-election violence
Particularly,
violence is looming in the four counties of Siaya, Kisumu, Homa Bay
and Migori, where the Independent Electoral and Boundaries (IEBC) has
ordered a repeat election but whose residents have vowed not to vote.
Already,
there was violence in another Nasa stronghold of Bungoma in which two
people were shot dead, while Kisumu was virtually under curfew a day
before the election was postponed indefinitely.
Musalia
Mudavadi, who was the National Super Alliance (Nasa) campaign manager,
said that the government has militarised elections by sending thousands
of security forces in these areas to force the residents to vote.
“Our
supporters have rejected attempts by Jubilee to impose a farce
elections on them. Now the government has militarised the elections
which will be used as a platform for possible genocide,” said Mr
Mudavadi.
Electoral procedure
With
Mr Mudavadi saying that the October election failed to follow proper
legal procedures, there are indications that Nasa would use some civil
society organisation to file another petition at the Supreme Court after
the final results is declared.
A
day to the election, High Court judge, Justice George Odunga ruled that
the appointment of all the returning officers and their deputies in 290
constituencies, had not complied with electoral regulations requiring
consultation with political parties. However, Jubilee rushed to the
Court of Appeal to set aside the ruling.
According to
the recent Kenya briefing by the International Crisis Group, the
election proceeded under poisoned political environment that would
deepen Kenya’s ethnic cleavages and prolong a stalemate that has already
claimed dozens of lives and come at a high economic cost.
Prof
Karuti Kanyinga, a lecturer at the University of Nairobi’s Institute of
Development Studies, says that the country is at cross-roads but
provides three scenarios in which Kenya is likely to find itself in the
near future.
Option 1: Prof Kanyinga
says that President Kenyatta can take a radical move by reaching out to
opposition and ask them to forward names for the formation of a
broad-based and all-inclusive government, even though the Constitution
does not allow a coalition government.
“This is very
difficult for both Mr Kenyatta and the opposition but it is one of the
only way that cool down the political temperatures that are building in
the country, especially among those who feel disfranchised,” he said.
Option 2: Prof
Kanyinga says that the Supreme Court can overturn the election again,
but this he says this is unlikely because the opposition was given a
chance to participate in the election and they did not bring to the
attention of the court that the situation had not improved since the
nullification of President Kenyatta’s election on September 1.
Should
the Supreme Court throw out another petition, Prof Kanyinga says it
would legitimise President Kenyatta’s election but will it would create a
situation of hostility and instability for the next five years.
Option 3: Prof
Kanyinga says is when the Jubilee and Nasa supporters decide that they
are tired and they want to move on. This would come after three to four
months of protests and after the opposition realise the futility and the
danger of continued agitation.
Retired Presbyterian
Church Reverend Timothy Njoya, a champion for multiparty democracy in
Kenya, said Nasa’s boycott should not be condemned as it is part of a
political strategy.
He said he is still full of hope
for the country because the conflict can bring out the goodness in
people as politicians on both sides could finally embrace each other’s
point of view once they realise continuous conflict is not taking them
anywhere.
'Battle lines overdrawn'
In
Uganda, independent views suggest that all parties should restrain
their supporters and security agencies as a first step leading to
dialogue.
“The most viable option is for the two
protagonists to sit and talk, holding view of Kenya being bigger than
them. Then an interim government should be established and that should
run the country for two years, arrange fresh elections in which the two
should not participate,” said Winfred Nuwagaba, a Kampala lawyer and an
independent legislator.
“Short of that, Uhuru will lead
the country amidst protests then front his cronies at the end of his
term and cycle will repeat itself. It looks like the battle lines have
been overdrawn,” Mr Nuwagaba added.
Mr Kenyatta who
lost his re-election following a petition in August by his rival Mr
Odinga, was a lone strong candidate in the repeat election that was
preceded with numerous court petitions, some of which remain
unresolved, won by a landslide — over 98 per cent but experts argue
declaring him elected president in the circumstance would escalate the
country’s problems.
“I believe even this election will
be challenged if the Kenyan Constitution and electoral laws permit
because it was not a re-run but a fresh election. But going
legalistically will not solve the situation because the law will be
rigid on issues and complicate matter, this situation requires amicable
solution,” Mr Nuwagaba reasoned.
However the law can still be used to guide the process of negotiation.
The
experts are also optimistic the ongoing chaos can easily be stopped
when the two rivals prevail over security and supporters.
The
problem with Kenya’s political dilemma is that when it bleeds the whole
of East Africa does, yet all the EAC countries have similar political
problems which combined threaten unity of the community — no country can
firmly stand and put to order the other.
In Uganda,
President Museveni is having trouble with the constitutional provision
on age limit which he wants removed. One person has been killed while
several opposition politicians remain hospitalised and members of the
public injured by security forces over the matter which critics say
leaves Uganda as an accident waiting to happen.
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