East Africa

A Question Kenya Finds Hard To Answer

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As the Jubilee Coalition merrily jubilates and the CORD coalition seems to have suddenly gone cordless, it is critical to re-emphasize one thing: that the Constitution envisages and allows for the challenge, via election petitions, of the results announced by the Independent Electoral and Boundaries Commission (IEBC) on March 9, 2013 that Uhuru Muigai Kenyatta is the President-elect of the Republic of Kenya having achieved 50.07% of the vote.

And there is a reason that this point is constantly underlined: in 2007, it was the lack of faith in the judiciary that resulted in the lack of engagement with that institution by the Orange Democratic Movement (ODM) to ventilate its grievances after it was declared to have lost.

The CORD coalition, then, cannot be condemned – as has happened in some quarters – for the simple exercise of a constitutional right: surely redress for real or perceived injustices and grievances is still part of the rule of law trumpeted as a national value and principle of governance under Article 10 (2) (a)? Or have we suddenly departed from the social contract we so joyously endorsed and promulgated on August 27, 2010 and returned to arbitrary rule – or the rule by whim?

This, then, is part of the standing operating software of constitutional democracy that, one observes, a significant part of Kenya is still having a problem processing. It is the right to Appeal.

This issue could also be characterized as part of what could be termed as the “A” question that the Kenyan state and society must embrace or reject to truly become a functional democracy.

Other “A’s” in this regard include Analysis, Accommodation, Anxiety, Artfulness, Attention and Amnesia. So what have we so far learnt about from the 2013 elections about the “A” question posed to our re-generating democracy?

Several things: we could begin by looking at the “Analysis” question and boldly state that, despite somewhat partially correctly predicting the result of these elections, Mutahi Ngunyi’s analysis in his Tyranny of Numbers remains correctly condemned as “so flawed that [he] should refund the money of the client that paid for it.” A review of Mutahi’s analysis indicates it still uncannily and remarkably resembles the predictive process and result of Paul the Octopus.

Paul the Octopus (died October 2010) was an octopus living in a tank in Oberhausen, Germany which used to predict results of football matches, usually international matches in which Germany was playing.

Paul came to worldwide attention with his accurate predictions in the 2010 World Cup. During a divination, Paul would be presented with two boxes containing food, each marked with the flag of a national football team in an upcoming match.

He chose the box with the flag of the winning team in several of Germany’s six Euro 2008 matches, and in all seven of their matches in the 2010 World Cup: his success rate ranked at around the 85 percent mark, with 11 out of 13 matches correctly predicted. He even predicted a win for Spain against the Netherlands in the World Cup final game by eating the mussel in the box with the Spanish flag on it.

The reason for this brutal condemnation is simple: Mutahi’s fundamental assumptions and “statements of fact” remain fatally flawed and the March 9, 2013 announcement of the presidential results is unable to cure them of these defects and deficiencies.

For those in doubt, please revisit Wachira Maina’s critique of Mutahi’s argument, carried sometime back in the Star newspaper which “explains the basic errors and spurious conclusions on which the Tyranny of Numbers stands.”

The lack of Accommodation of alternative views and identities was another clear feature of these elections. Here what is taken umbrage with is not how voters exercised their democratic choices; rather, it is that the undergirding logic through which these choices were made spoke of an intolerance of the alternative view or political identity.

Hence, there were the dominant political parties and formations (CORD and Jubilee) demanding that their supporters adopt a 6-piece suit voting system despite their fundamentally flawed primary nominations.

There were voters “punishing” some candidates for “spoiling” for their favourite political sons. There were leaflets circulating in particularly the Coast Province warning “settlers” or “outsiders” to move out; around election-day, there were, sadly, even lives lost due to this. And there was the attempt to stifle the ventilation and debate related to opinion poll results, the International Criminal Court (ICC) cases on Kenya and the land question.

The Anxiety and impatience exhibited around the length of time it took to count and tally votes told of at least two things. First, it expressed exasperation at the IEBC’s clear ineptitude in its handling of the electronic system of voter identification and vote verification, transmission and tallying.

This, most likely, will be the subject of the envisaged presidential petition process. Second, it also spoke of an expectation that electoral democracy should be like instant coffee: you boil water, add the coffee, milk and sugar and voila! Given whence Kenya has come, this expectation can only be seen as unreasonable.

Kenya has always been fascinated by the Artful dodger. Indeed, children’s tales, fables and folklore heavily rely on the character of sungura mjanja (the cunning hare).

The problem in an electoral environment is that being artful in this cunning sense introduces real suspicion and perilous toxicity into the system.

Why did the electronic system fail? Why was there an eight-fold multiplication of “rejected votes”? How come the “valid votes” denominator was being used while the Constitution at Article 138(4) clearly demands that the right one is “votes cast”? There will be a multitude of questions asked because in Kenya, the tradition has been to politically reward the sungura mjanja.

This, obviously, calls on Kenyans to pay Attention in holding its democratic processes to account. Indeed, as Thomas Jefferson warned, the price of democracy is eternal vigilance.

Yet, one saw the vast majority treat this election as an event rather than a process that is required in the advancement of our democracy. Why would that be?



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