NASA has led a determined campaign to ensure that the election does not take place on August 8. Opposition strategists decided that the only way to achieve this objective is to create the local and international perception that the IEBC is unable to conduct a free, fair and credible election. They then identified four key areas to build their case on; registration of voters, access to polling stations, casting and counting of ballots and the declaration of results. The courts would be their playground to achieve their objective.
NASA first moved to court to question the declaration of presidential results at the national tallying centre. The idea was to discredit the declaration of results and counting of ballots. They argued that the presidential tally should be done by the constituency presiding officer, and not the chief returning officer at the national level, in this case the IEBC chairman. In one of those decisions that make one agree the law is an ass, they won and the courts decided that presidential results declared at the constituency level are final! AfriCOG, an NGO closely associated with the interests of NASA, also went to court seeking orders that the IEBC be compelled to publish the voters’ register online. The idea here was to discredit the voter register. AfriCOG’s argument is in line with NASA’s claims that the electoral commission is acting illegally and in contravention of the Election Laws (Amendment) Act 2016, by not making public the audit of the registered voters.
UN Special Rapporteur Maina Kiai, who is also allegedly associated with NASA, also went to court suing the IEBC for allegedly flouting rules in the importation of biometric voter identification devices. The idea was to discredit access to polling stations. In another multi-pronged effort to disorganise the entire voting process, NASA filed a suit against the decision of the IEBC to award the tender for the supply and delivery of ballots to Dubai-based Al Ghurair Print and Publishing Company. They also moved to court accusing the IEBC of failing to ensure there is complementary electronic technology as backup as required by the law, and demanded for the postponement of the August 8 polls at some levels until this is done.
To understand the strategy NASA is using, one must go back to the last general election. In 2013, NASA leadership — other than Bomet Governor Isaac Rutto, who was then in the Jubilee coalition — lost the presidential election. They did not accept that they had lost fairly and instead chose to blame the Judiciary, the IEBC and the security forces. Between 2013-17, these same politicians have done everything they can to paralyse these institutions.
We must also understand that NASA badly wants to be in government. However, they know that if the Kenyan people are allowed to practice their democratic right to chose who they want to lead them, they will never choose NASA. So they have looked at their options. In the past, they have used violent street protests quite effectively to achieve their objectives. They also have a history of exerting international political pressure on a duly elected President, and forcing themselves into power through a coalition government. This is the 2017 NASA playbook.
NASA has, therefore, done everything possible to use the courts to ensure there will be no election on August 8. The idea is that on August 8, they will run to the courts and argue that President Uhuru Kenyatta’s term ended the previous day, thus creating a constitutional crisis. In this confusion they can then call for their usual ‘mass action’ and in the ensuing chaos, force Jubilee to accept the establishment of a ‘caretaker government’ – also known as ‘Nusu Mkate’. Unfortunately for them all their efforts have failed. Kenya will have an election on August 8.