I made the point in this column that the 2017 presidential election failed in exactly the same way that the 2013 election had failed and the 2007 before that.
I wondered what the next line of reforms might be, because all the reforms up to now have borne no fruit. Aggrieved by the manner in which the 2017 election was managed, Raila Odinga, adjudged to have lost the election, had already rejected the results, keeping the country on tenterhooks as he promised an earth-shaking announcement of his next move.
That move turned out to be a decision to challenge the results of the elections in the Supreme Court, hardly as earth-shaking as had been expected. However, this was still significant enough because it was a reversal of a previous long-held position that he would not be going back to the Supreme Court if he lost the 2017 election.
At a time like this in 2013, going to the Supreme Court was viewed with some disapproval.
For example, as Kenyan civil society prepared an alternative petition to the one by Odinga, challenging the results of the 2013 election, they came under pressure from their Western donors who did not want their money to be used in support of the effort.
In particular, one donor demanded that civil society should make a public statement clarifying that Western funding was not supporting the petition. The donor went ahead to make the announcement, when members of the civil society refused to do so, thus publicly disavowing their work.
2017 has been rather different. As the campaigns rolled out, an unattributed advertisement on television represented a sheepish campaign by pro-establishment groups that those aggrieved by presidential election results should go to court.
The campaign was shamefaced because not even they believed that courts of law were likely to provide an effective remedy. The advert shared an ideological outlook with a peace campaign that was also bombarding the public before elections.
While these groups promoted going to court as the peace option, they have shown remarkable indifference to the astonishing rage that Jubilee has directed towards the Supreme Court for daring to annul the presidential election.
It is tempting to conclude that they recommended going to court, only to mollify the opposition, rather than to open the establishment to a situation that could constitute a genuine threat to its interests.
Always seen as a doomed process, judicial action has ended up producing a most upsetting outcome, one that will greatly re-balance the relationship between the judiciary and the executive. The Supreme Court’s decision is remarkable not only because it annulled a presidential election but also because of some of what the court did on the way there.
During the preliminary stages of the hearing, the court ordered the Independent Electoral and Boundaries Commission to allow a scrutiny of its computer servers as a means of resolving some of the issues in contention in the petition.
While severe time constraints prevented a comprehensive scrutiny of the servers, the IEBC also employed a policy of obstruction, with a view to defeating the scrutiny. Still, enough information emerged from the scrutiny to suggest that there were significant anomalies with the technology infrastructure of the commission.
Further, and irrespective of the outcome of the petition, the behaviour of the IEBC during the scrutiny knocked the organisation off its high horse, casting it in the mould of a criminal empire. The procedural aspects of the court action have created a new discourse on the limits of public interactions with the technologies used by the IEBC.
Over the years, while the IEBC has moved to incorporate technologies in the management of elections, it has not created opportunities for public access to the technologies. After what happened in court, there can be no justification of this situation.
The Supreme Court process has shattered the wall of secrecy that the IEBC had erected over its technologies. It will no longer be possible or justifiable for the IEBC to run the technologies on its own, especially after the limited reviews revealed such clear offending by IEBC officials.
Significant participation by other stakeholders, principally political parties, will now have to be incorporated in the future deployment of technologies, starting with the fresh presidential election.
While the Supreme Court found the courage to deliver an unforgettable judgment, one that has gone a long way towards holding together an anxious country, the IEBC is in disarray. Before the election, the internal frailties at the IEBC were covered up in its culture of secrecy.
Even before the scrutiny that the Supreme Court ordered, the IEBC had raised the red flag when, in reply to the petition, they filed documents that were patent forgeries. Their undignified behaviour in blocking a court-ordered scrutiny was not only a contempt of court, but also communicated that something was very wrong at the IEBC.
Thereafter, the IEBC has been in free fall, with the chair, Wafula Wanyonyi Chebukati, coming up with stunning accusations against the CEO, Ezra Chiloba, to whose defence a section of the commission then sprung. For the smug Chiloba, his fall began when the IEBC erected barriers on the court-ordered scrutiny.
It remains unclear where it will end and not even the defence by a section of the commissioners will save him. Further, the more they defend him, the clearer it becomes that it was not an accident that the IEBC chose to run such a bad election.
GRAVITY OF FAILING
For a number of the commissioners, they are too mousy to even recognise the gravity of their failing.
As a result, they are still playing the little games that led the IEBC to its current abyss. For Chebukati, it is a case of too little too late. Where was he when all these things that he now complains about were going on?
The good deeds of the Supreme Court have opened a new front in the country’s electoral reform struggles and, while there is insufficient space to give effect to them in this election, especially when the duty to do so falls on such a compromised commission, there is renewed hope.
However, Kenya remains deep in the woods into which another poorly managed election has taken the country.