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November 17, 2018

Electoral mess is Kibaki's legacy

A voter at the Old Kibera Primary School proceeds to cast his votes in Nairobi, August 8, 2017./JACK OWUOR
A voter at the Old Kibera Primary School proceeds to cast his votes in Nairobi, August 8, 2017./JACK OWUOR

The repeat presidential election is due in three weeks, but the current political muddle clouds this historic event. We came to this unprecedented juncture through the sagacious intervention of the Supreme Court.

Chief Justice David Maraga, the president of the Supreme Court, addressed four issues, with patriotic clarity and courage, on September 1: The court nullified the August 8 presidential election. The court also indicted the Independent Electoral and Boundaries Commission for committing ‘illegalities and irregularities’, which compromised the presidential election.

The court ordered a repeat presidential election, within 60 days, in strict adherence to the Constitution and electoral laws. The constitutional window for a fresh presidential election closes on November 1.

The court said it would invalidate any election that does not meet the constitutional and legal threshold. The court has a fresh and powerful backup in its own precedent. Millions of citizens followed the court proceedings, with rapt attention. Behind the attention was the question: Where do we go from here?

Wobbling to another shambolic presidential election is an option. This would produce a vicious circle of stolen elections. The bungle would produce illegitimate leaders, rogue enough to cannibalise the Constitution.

Getting the repeat presidential election right, freely, and fairly, with a credible winner and a magnanimous loser, is another option. This would return the country to a democratic trajectory. This is where the country was after the December 27, 2002, General Election.

The 2002 election drove out the monolithic ruling party Kanu and ushered in a new era under President Mwai Kibaki. The former Othaya MP was, at the time, described as a project of the people. But the accolades for Kibaki changed to jeers when vested interests hijacked the ‘Rainbow Revolution’.

The Kanu presidential candidate at the time, now President Uhuru Kenyatta, was a child of the status quo whose personification was President Daniel arap Moi. The majority of Kenyans who rallied behind the National Rainbow Coalition wanted change, and got it. But this was a false dawn.

Kenya has been thrown back to the confusion of the December 27, 2007, presidential election. The mendacity and tribal bigotry of the Kibaki regime account for this regression. The electorate trusted this man with a huge responsibility of uniting the nation in 2002, but Kibaki lost the script. The supposed ‘democrat’ evolved into a monster of opportunity.

A commission of inquiry into the conduct of the 2007 election concluded it was impossible to establish the winner. Justice Johannes Kriegler, a South African retired judge who chaired the commission, identified massive ‘illegalities and irregularities’ that needed to be addressed to ensure free and fair elections.

Partisans, hypnotised ethnic hegemonics, and steak-holders are still fighting over these issues a decade later. Because of this insanity, time is running out on reason and Kenya.

The irregularities and illegalities of August 8 cannot be peppered away as mere ‘clerical errors’. Or forms that were not filled at the police station, so the lost and found cow cannot be released to the owner. This is cheapening criminality and accountability in the conduct of public affairs.

We want to wean children off cheating in national examinations, but it seems fair game for politicians to rig elections. Shame dies when conscience is stilled. This is the motif in the ambition-driven political stalemate.

By affirming that the Supreme Court would again invalidate a fraudulent repeat presidential election should a petition be filed, Justice Maraga was reclaiming electoral morality. This was not a threat. This was a counsel that leaders attain a moral high ground if they are products of free and fair elections.

Leaders lose legitimacy if they are products of electoral irregularities and criminality. This is not about presidential candidates Raila Odinga, Ekuro Aukot and Uhuru Kenyatta. It is about Kenya. It is about democracy, electoral justice, and legacy. It is about us — the people.

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