Chapter One of the Constitution states, ‘All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution ... The people may exercise their sovereign power either directly or through their democratically elected representatives ... Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution; (a) Parliament and the legislative assemblies in the county governments; (b) The national executive and the executive structures in the county governments; (c) the Judiciary and independent tribunals.
These statements could very well be the most important statements in the whole Constitution. They state categorically Kenyans are the ultimate determinants of how they want Kenya to be governed, and by whom. They also indicate the order of how decisions are made.
It is by the general populace first, then their representatives, then their institutions; in that order and in accordance with the Constitution. But it is also Wanjiku – the people – who decide on the Constitution. If Wanjiku today decides she does not like something in it, her decision is supreme.
In their wisdom Kenyans decided that every five years every adult citizen who registers as a voter and then decides to go and vote, will decide on behalf of all 45 million Kenyans - directly - who will run Kenya as MCA, MP, senator, governor and president. This active voter is the essence of Wanjiku.
On August 8 Wanjiku went to the ballot. She queued, took a set of ballot papers, ticked against one name amongst all those who had offered themselves to run Kenya on her behalf at the various levels of government, and then went home to wait for the votes to be counted by the IEBC, the institution she has set up to count the votes she casts to elect her leaders. The IEBC counted Wanjiku’s votes and presented Uhuru Kenyatta as the one who Wanjiku had decided should be President 2017-2022.
Raila Odinga, one of many presidential candidates, was unhappy with this decision and argued that the IEBC had not followed the right processes in declaring Uhuru President. He went to the Supreme Court, another institution Wanjiku set up to deal with arbitration when agreements around presidential elections occur. He argued that the IEBC had not followed the right process in declaring Uhuru President. The Supreme Court agreed with Raila, nullified the presidential election, and demanded a fresh election be held.
The Supreme Court spoke of forms 34A, B and C; documents that Wanjiku has never interacted with when making her decision. The sovereign will of the Kenyan people, the ballot paper that Wanjiku interacted with directly, was not considered. All that the court needed to do to determine Wanjiku's decision was order for the ballots cast - which were physically available in 40,883 stations, to be counted.
It would have taken less than seven days and cost less than a fresh election. It would also have told us clearly what the sovereign will of Kenyans was on the matter of the President. But they decided that process was more important than output; a decision very civil society in nature.
Well, we will repeat the presidential election as ordered. However, if anyone petitions the results, before we get into any legal arguments in any court, we will first count the ballots; from all 40,883 polling stations. Once we know who Kenyans have voted for as President we will swear him in, then we can deal with any process failures.
But never again will an institution set up by Wanjiku overturn Wanjiku’s sovereign decisions with such audacity.
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