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Petition showed presidential poll last month was a criminal venture

Friday September 8 2017

From left, Supreme Court Judges Njoki Ndung'u, Jackton Ojwang, Deputy Chief Justice Philomena Mwilu, Chief Justice David Maraga, Mohamed Ibrahim,  Smokin Wanjala and Isaac Lenaola at the Supreme Court of Kenya on August 26, 2017. The historic ruling which nullified President Kenyatta's re-election may have little effect on other cases. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP

From left, Supreme Court Judges Njoki Ndung'u, Jackton Ojwang, Deputy Chief Justice Philomena Mwilu, Chief Justice David Maraga, Mohamed Ibrahim, Smokin Wanjala and Isaac Lenaola at the Supreme Court of Kenya on August 26, 2017. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP  

By DAVID NDII
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Shortly after the Supreme Court nullified President Uhuru Kenyatta’s election, I came across a post on social media by a citizen journalist in Kitengela narrating how National Super Alliance and Jubilee supporters were massed on opposite sides of a road touting one another.

The reporter said the Nasa group was chanting pro-opposition slogans while the Jubilee brigade was shouting back “tutaiba tena” (we will steal again).

“All peaceful,” she added.

I also came across another post citing one TV station as reporting the “tutaiba tena” chants in Nyeri and Nyandarua counties, both Jubilee strongholds.

A fortnight ago, this column discussed corruption and dishonesty.

It is of course not the first time the column has reflected on the collapse of public morality in Kenya.

THIEVES

In the column “If we won’t let go of our thieves, let’s just kiss and say bye” (Saturday Nation, November 19, 2015)), we cited the following observation by political economist and moral philosopher Albert Hirschman from his 1970 classic Exit, Voice and Loyalty: Responses to decline in firms, organizations and states: “No matter how well a society’s basic institutions are devised, failures of some actors to live up to the behaviour which is expected of them are bound to occur, if only for all kinds of accidental reasons.

Each society learns to live with a certain amount of such dysfunctional or misbehaviour; but lest the misbe­haviour feed on itself and lead to general decay, society must be able to marshal from within itself forces which will make as many of the faltering actors as possible re­vert to the behaviour required for its proper functioning.”

Hirschman’s thesis, which the title alludes to, is that failing organisations or states give people three choices, voice, which is essentially to fight for change, to resign themselves, or to leave.

The specific point he makes is that society only tolerates so much deviant behaviour. There is a threshold of deviant behaviour beyond which society will collapse.

JUSTICE

Consequently, societies devise all manner of contrivances ranging from taboos to justice systems that seek to minimise deviant behaviour.

Back in the day, when our hunter gatherer ancestors discovered that they could trap animals instead of running after them, and sowing seeds instead of foraging.

There would have been no point in laying your snare if you would have to spend all your time watching to ensure another person did not get to your catch before you did.

Our ancestors would have had to devise a way of enjoying the benefits of the ingenuity of being able to catch dinner while doing other things, such as being practised in the art of making better stone axes and painting caves.

Had they not devised moral codes, we would conceivably still be hunter gatherers. In short, containing dishonesty is at the heart of civilisation and culture.

The court proceedings of the presidential election petition left many observers confounded by just how ineptly the poll was rigged.

SECURITY FEATURES

My favourite was Mr Paul Muite’s “abundance of caution” defence of the absence of security features in some of the statutory election forms submitted to the court by the commission.

There was the convoluted exchange on what the numbers that we saw on TV were, as they were referred to variously as statistics, data and the numbers “previously referred to as provisional results.”

Then there was the hilarious incident of the tongue-tied learned friend trying to fumble his way out of the question of what the half a million plus people who supposedly only voted for president did with the other five ballots. The “stray ballots” argument failed.

When the rescue came, it was the equally ludicrous explanation to the effect that these would have been accounted for as spoilt ballots in the other elections.

The judges allowed it to end there, perhaps more out of empathy than persuasion.

FIVE ELECTIONS

It was probably not lost to them that 500,000 plus voters times five elections works out to 2.5 million plus spoilt ballots. But nothing beats the revelation that IEBC submitted to the court forms whose constituency barcodes belonged to “restaurants, the World Health Organisation, MicroDrivers and other strange entities”.

The public now knows, courtesy of chairman Wafula Chebukati’s “show cause” memo to IEBC chief executive Ezra Chiloba that the 2017 presidential contest was a sham election and for the most part a criminal enterprise.

What continues to confound is why it was so incompetently done. It shall remain a mystery why IEBC would confirm to Nasa in writing that at the time of the declaring the result, it only had 103 Form 34Bs i.e. one third of the constituency results, and did not have 11,000 Form 34As, representing close to a third of the polling stations!

“On August 11, the commission supplied you with 29,000 Form 34As and 103 Form 34Bs as stated in your letter dated August 14. On August 14, 2017, you were supplied with balance of 187 Form 34Bs…Enclosed herein are 5,015 Form 34As part of those that had not been scanned,” IEBC wrote.

DECLARATION

Five days after the declaration of the results, Form 34As were still being scanned afresh at Anniversary Towers! For the avoidance of doubt, this is to say, that the Form 34As for the 11,000 polling stations were not transmitted using the KIEMS gadget as per the law, but were being scanned afresh.

The blunders confound only when looked at in isolation. The totality of the debacle is more easily explained by the old age that there is no honour among thieves. 

The problem that the schemers faced was one that every crime syndicate grapples with, namely that there is no honour among thieves.

Failure to perform in criminal undertakings is not subject to legal or social sanction — thieves who are cheated by their accomplices cannot take them to court or go around badmouthing them.

The only enforcement mechanism that drug cartels and other crime syndicates employ is violence against their own.

Unfortunately, a business which relies on baseball bats to keep its workers honest is bound to have trouble recruiting.

CARTEL

This is the problem that election heist run into — lack of cartel discipline.

A lot of money would have been changing hands, but there was no way of ensuring that it reached the intended co-conspirators. Even when it did, it would not be deployed for the intended purpose.

You would not expect the person tasked to forge 34Bs to meticulously ensure that they had all the details, down to the bona fide barcode.

Far more likely, he or she would have been more concerned with getting his or her cut from the supplier.

Therein lies the problem; to run a successful crime syndicate, you need honest criminals. The Sicilian mafia, who refer to themselves as men of honour, wrote a book on this.

MORAL CODE

The mafia moral code as revealed by mafioso-turned state witness Antonino Caldarone in In Men of Dishonor: Inside the Silician Mafia: not to touch the women of other men of honour; not to steal from other men of honour or, in general, from anyone; not to exploit prostitution; not to kill other men of honour unless strictly necessary; to avoid passing information to the police; not to quarrel with other men of honour; to maintain proper behaviour; to keep silent about Cosa Nostra around outsiders; to avoid under all circumstances introducing oneself to other men of honour.”

Here is the remarkable thing. Even the Mafia prohibits stealing!

One of the mysteries of history is what caused the demise of ancient civilisations that bequeathed us pyramids and other wondrous edifices such as the great Zimbabwe and the Easter Island monuments that I wrote about sometime back.

CATASTROPHES

There are of course no shortage of plausible explanations, including war and environmental catastrophes. To these causes, I would propose the collapse of public morality and, specifically, the normalisation of stealing. 

The choice that we face is not just about democracy or electoral autocracy, but whether we are going to follow thieves on their path to self-destruction. 

 David Ndii, an economist, is currently serving on the NASA technical and advisory committee. He leads the NASA policy team. [email protected] @DavidNdii