Judiciary must “protect” Kenyans from saboteurs of repeat polls

The verdict by the Supreme Court on the Presidential election has thrust the country into a constitutional confusion.

The first line of argument is whether or not the IEBC, in its current constitution, would have the moral authority to conduct the second round of elections.

Given the way its conduct was condemned by the Supreme Court and followed by the Court’s order that they should conduct fresh elections, the Opposition has already picked this missile.

A demand by the Opposition that this team must not conduct the election is an attempt to throw this country into a constitutional crisis.

IEBC

It is the clearest indication the Opposition will be working hard to ensure the upcoming election is mired in so much crisis that it will be untenable to conduct an election that can pass the “fair and transparent” bill of health.

Kenyans are yet to exactly know why the judges were that harsh to an institution that has conducted a seemingly fair election.

Only their final judgement will shed light on “this monumental” abuse of the Constitution the Judges hinted at.

The judges were clear that it is the current IEBC that ought to conduct a new election before November 1.

VERDICT

From their summarised verdict, they find no fault in the final votes obtained by each of the candidates.

There is also no mention of abuse of the election laws as far as the candidates or election officials at the polling station are concerned.

There are no winners or losers in this election; only a victim. President Kenyatta with all resounding endorsement of more than 8.2 million Kenyans is the biggest victim.

A scrutiny of the preliminary verdict reveals the problem IEBC faced was more systemic than anything else.

Anyone who lives this country and who pronounces himself as possessing the virtue of nationhood, should therefore not condemn IEBC at the individual level, but at the institutional level.

RECONSTRUCT

Transmission of votes is a critical ICT matter, and what we need to be looking at is how this ICT matter can be secured and be made more transparent.

It is the internal support system that we need to help IEBC reconstruct and not a mob justice approach to the overhaul of the whole system.

Chief Justice David Maraga said it was not “humanely possible” to scrutinise all the documents and give a full judgement within the time available for the conclusion of the petition.

By the same token, I submit that it is not “humanely and legally possible” to overhaul the IEBC and still expect to seal the loopholes that might have led to the annulment of the election in 60 days.

First and foremost, the Opposition’s condemnation of the commission and a further suggestion of a legally unrecognised body such as the UN to conduct the election smacks of political sabotage to the forthcoming electoral process. 

CONSTITUTIONAL CRISIS

By law, removing this commission and expect to conduct the fresh election as ordered by the court is impossible; unless we are hell bent to break other laws in that mission.

We have already experienced a crisis of monumental magnitude and it is my prayers the Judiciary rises to the occasion and resists any attempt to make it impossible for the fresh elections to be held.

Both Jubilee and Nasa deserve justice. If the Opposition, goes full throttle and demands the overhaul of the Commission perhaps because it did not hand them victory and Jubilee, on the other hand, demands removal of the Supreme Court Judges for the same reasons, we shall be doing this country a great disservice.

Removal of the seven commissioners would, in the extreme, require formation of seven tribunals to probe the culpability of each of them. Let’s even stop there. Do we have the luxury of time to constitute these tribunals and conduct fresh recruitment and still hope to better the commission’s inadequacies in two months?

I call upon the Judiciary to resist the invitation to plunge this country into a further constitutional mess.

POLITICS

It could do this by hearing and determining the case(s) against the current IEBC and its role in the fresh election as soon as possible.

Kenyans, on their part, must demand an issue-based campaign to be able to make their democratic choices the way they did on August 8.

We have been subjected to so much politics of witch hunt and innuendos that it is time we resist sacrificing our nationhood at the altar of personal or ethnic ambitions.

In this second chance, we must support an electoral process that is acceptable to all so that after the will of the people is given, we can hurriedly launch our peace and reconciliation path.

There are indications this country is politically divided in the middle and the first step is to have a fair election which should lead to unification.

 Dr Barua is a Governance and Social Entrepreneurship expert; [email protected]