Needed: Reform of IEBC and the Supreme Court

In other circumstances, the new exit poll which shows that there was no outright winner of the presidential elections held last year, would have generated great debate in the country.

However, the results of the last presidential elections have become a taboo subject, and are generally not publicly discussed, other than from the point of view of the Independent Electoral and Boundaries Commission.

Significant sections of the media have given cold treatment to assertions of the kind reflected in the exit poll, as a result of which there is no follow-up to stories like these.

Part of the problem, of course, is that the IEBC results represent just numbers, rather than votes, which the IEBC has been altering with complete freedom, but with no accompanying explanation.

Also, the IEBC is no longer viewed as a credible interlocutor on elections, meaning that there is no public authority to engage with on the subject.

The results of the last elections sundered the country’s sense of shared values, with just a section of the population now concerned with democracy, while the remainder only cares about “development”, which is a way of saying whatever method was used, the right person got to State House. It is also a way of saying that the “development” agenda can only be entrusted to only a section of the population.

The new poll gives something to fight with, for the half of the country which felt that the results as announced by IEBC defied explanation.

The exit poll was conducted on March 4 by two US academics. Some 6,258 voters were reportedly interviewed as they left 404 polling stations spread across 47 counties.

The enumerators randomly selected every second voter leaving polling stations, and had an 88 per cent response rate on the interviews which were transmitted live on Android phones. The exit poll indicated that Raila Odinga received 40.9 per cent of the vote while Uhuru Kenyatta received 40.6 per cent.

If this poll is to be believed, no candidate received sufficient votes to be declared a winner in the first round, and there should have been a second round of voting to determine a winner.

The results of the poll mirror those of local opinion pollsters who predicted that the presidential race was too close to produce an outright winner.

Only last week the opposition coalition, Cord, called for an overhaul of the IEBC, asserting that it had lost credibility and should never again run elections.

There was no response from the IEBC or the government, an indication of how asymmetrical the relationship between those who support the IEBC, and those who oppose it, or want it reformed, has become.

The Supreme Court is implicated in this problem. The newly established court was fashioned out with the country’s bitter electoral experiences in mind. A central mandate of the court is to moderate political competition through adjudicating disputes from presidential elections, a mandate exercised in intervals of five years.

When the two petitions challenging the declaration of Uhuru as President were presented to the court, a counter-petition was also presented, opposing the two petitions. Only the counter-petition was successful while the petitions challenging the results failed. Also, all procedural applications from the Uhuru corner succeeded while those challenging his election failed.

BIASED COURTS

Before the Supreme Court, there emerged a clear pattern: nothing was going to be allowed that would disturb the IEBC results. While doing this, the court allowed the winning side an unbridled opportunity to denigrate and belittle the losers, fair punishment for daring to question power.

In the end, the judgment of the court also gave the IEBC an unqualified cloak of legitimacy, which has been important for its continued survival, beyond the bungled elections.

The clear message from the Supreme Court was that it did not care about the pain that the country had only recently gone through, or the unique mandate that the Constitution had conferred on it.

Before the Supreme Court was established, the highest court in Kenya had been the Court of Appeal. In a past season, the Court of Appeal was accused of having become a court of power, rather than a court of justice.

The original version of this accusation was applied by the famous US judge, Thurgood Marshall, while a practising lawyer, in reference to the US Supreme Court.

There is a sense that it is the new Supreme Court that has become a court of power, sustaining itself not through reason but by aligning with the establishment.

While the discussion has focused on the possible reform of the IEBC, an obvious and inescapable necessity, there needs to be a discussion about the reform of the Supreme Court as well, a court that has done little to justify its existence.

The question has to be: what is the need for the Supreme Court if old habits of doing the bidding of power remain intact? What would justify the expense imposed on the taxpayer, and the delay in getting to the end of the justice chain, necessitated by an additional tier of courts, if there is no improvement in the quality of justice?

In a freer country, there would be a discussion of the meaning of the new exit poll in the context of the electoral process and the results that were declared. The exit poll supports calls for reform not only of the IEBC, but also of the Supreme Court.

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