In tight races, beware silly mistakes

Friday August 4 2017

By LUIS FRANCESCHI
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Frank Raudo is one Kenya’s most promising short distance sprinters.

He is not just a runner, but an entrepreneur and a top fourth year law student. He hopes to represent Kenyan in the next Olympic games.

A few months ago, Frank and I went for a hike with some 20 other law students. Our target was to summit Mt Elephant in the Aberdares.

We were not in a hurry but young and energetic people like to race; they have it in their genes. So we were racing to the top.

Raudo’s shoes were too tight. A hiker should never wear tight shoes to climb a mountain. He did not give due importance to this matter, but it became our topic of conversation.

Tight races are always stressful and the temptation to give up or to cheat is sometimes overwhelming.

As we kept sweating our way to the top, struggling to defeat the nasty obstacles that the Aberdares’ bamboo forest had placed on our path, I applied Raudo’s tight shoes dilemma to our country and the forthcoming election.

At that time, the election was still far and back then, Jubilee seemed to have a clear victory. Even if President Kenyatta did not campaign, it seemed a clear outcome, a yes for Jubilee all the way.

Raudo was suffering as he walked. For him the climb was a painful but enjoyable feat. Like Raudo’s shoes, any tight race wears out the last bit of energy any runner has. When Raudo had put on his shoes before departure, they hadn’t felt so tight.

Just like Raudo, some political players thought the race was not tight. The infamous “tyranny of numbers” made too many people think the tide could never swing. Perhaps strategists did not consider the huge influx of a young population that has grown up in cosmopolitan, urban Kenya.

Sometimes, tight races make people do stupid things. This week we had the saddest possible example of such despair. Whoever killed Msando did a very stupid thing, unforgivable and unforgettable.

Another silly move was the publication of a fake TI-Kenya report on how the corrupt opposition governors funded NASA campaigns.

This move was a poorly conceived, blatant lie. The fact is that TI has never done such an investigation nor written such a report and the board has never met over such issues.

TI would never take political sides; it has always looked at corruption as a social evil no matter the political affiliation and never for political gains of any party.

HOW TO HANDLE A RUNOFF

The thin mountain air made us pant heavily and gasp for that oxygen we take for granted at lower heights. As we climbed, we asked ourselves, will Kenya suffer like Raudo with a tight race?

Lawyers are strange people who can discuss any boring piece of legislation with amazing enthusiasm and take pleasure in resolving the problems people did not know they had. 

Our conversation focused on Article 138 (4), (5) and (6) of the Constitution of Kenya. The Constitution gives direction on what is to take place should no presidential candidate win more than half of the total votes cast, and at least 25 percent of the votes cast in each of more than half of the counties. The Constitution says:

(4) A candidate shall be declared elected as President if the candidate receives--

(a) more than half of all the votes cast in the election; and

(b) at least twenty-five per cent of the votes cast in each of more than half of the counties.

(5) If no candidate is elected, a fresh election shall be held within thirty days after the previous election and in that fresh election the only candidates shall be--

(a) the candidate, or the candidates, who received the greatest number of votes; and

(b) the candidate, or the candidates, who received the second greatest number of votes.

(6) If more than one candidate receives the greatest number of votes, clause (5) (b) shall not apply and the only candidates in the fresh election shall be those contemplated in clause (5) (a).

It is not easy for a runoff to happen in Kenya. We are such a politically polarised society that it is likely that one out of two main candidates will always meet the threshold.

But will things change if a 100,000 Kenyans decide to vote for a third-choice candidate? It has happened in other countries and it could happen in Kenya and, in any case, we should be ready for such an eventuality. 

This matter is complex. To begin with, there was a difficult question at the core of the 2013 presidential election petition: What constitutes ‘all the votes cast’? The Supreme Court in Raila Odinga and 5 Others v. Independent Electoral and Boundaries Commissionand 3 others declared that rejected ballot papers are not to be counted as votes, consequently, the term ‘votes cast’ did not include ‘rejected’ ballot papers but rather valid votes cast.

So far, the IEBC has not made public any guidelines with specifics on how a runoff would be occur and one is only left to rely the constitutional text.

Perhaps the Commission thought of issuing more exact guidelines in due time, and that due time, like Raudo’s shoes, has never been an issue…until it starts hurting.

QUESTIONS NO ONE IS ASKING

There are several relevant scenarios we should be ready to face. For example, what would happen if no candidate meets the constitutional threshold and one of the candidates goes to court?

In principle, we have 30 days since the “previous election” to hold a run-off. If one candidate goes to court, the court has 14 days to decide. Considering that the announcement of a run-off could be made on 15 August (IEBC has 7 days to issue final results), any of the candidates may have until 22 August to go to court and the courts may reach a final decision on 7 September or thereabouts.

If the court withholds the validity of the IEBC announcement of a runoff, then the IEBC has less than 24 hours to prepare it, print ballot papers, and do whatever is necessary to meet the constitutional mandated periods. This is impossible.

Clearly, the Constitution did not envisage the possibility of one or more candidates moving to court in the intervening period, between the time when Round One results are declared and a runoff is held. Article 140 of the Constitution only envisages such a case only after the president-elect is declared.

Article 140 says:

(1) A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election.

(2) Within fourteen days after the filing of a petition under clause (1), the Supreme Court shall hear and determine the petition and its decision shall be final.

(3) If the Supreme Court determines the election of the President- elect to be invalid, a fresh election shall be held within sixty days after the determination.

As it stands, there is a constitutional abeyance. It should naturally be sealed by legislation, precedence or past practice but unfortunately, there is silence in all three.

One of our hikers was Cecil, a thoughtful young lawyer and scholar in the making. In his opinion, the Supreme Court, which has original and exclusive jurisdiction for all matters to do with the presidential election under Article 163 (3), can intervene even before a runoff.

Rule 12 of the Supreme Court (Presidential Election Petition) Rules, 2013 provides that one of the grounds on which presidential elections could be challenged at the Supreme Court includes, “a) the validity of the conduct of a presidential election.” Such a challenge does not, logically, require the declaration of a president-elect first.

ONLY TRUTH

Tight races are always uncomfortable, and often dangerous for society. Anything may be interpreted from the conspiracy perspective. The temptation to cheat is real but cheating is not sustainable, and little by little, repression sets in to silence a restless, repressed majority.

In 2007 the numbers did not match reality. Delays and uncertainty fuelled conspiracy, hopelessness and marked the beginning of dark democracy years.

It is not that there had never been any cheating in post-independence Kenya, but this time cheating was sugar-coated with an appearance of truth. Violence swept the country.

It had been a tight race and the shoes had destroyed the runner. We have run a bad race, badly managed.  Perhaps to prevent a repeat of 2007, Ezra Chiloba, CEO of the IEBC, has very recently declared that results will not be periodically updated but will collate all the 290 constituencies and then declare final results.

This seems to be within their mandate, as the law does not force the IEBC to give periodic updates. However, everyone in the IEBC must have clear in their conscience that the future of Kenya depends right now on their honesty, integrity and the credibility of the process.

Article 138 (10) of the Constitution simply says that:

Within seven days after the presidential election, the chairperson of the Independent Electoral and Boundaries Commission shall--

(a) declare the result of the election; and

(b) deliver a written notification of the result to the Chief Justice and the incumbent President.

This matter is further dealt with by Section 39 of the Elections Act 2011, which says that,

(1) The Commission shall determine, declare and publish the results of an election immediately after close of polling.

(2) Before determining and declaring the final results of an election under subsection (1), the Commission may announce the provisional results of an election.

(3) The Commission shall announce the provisional and final results in the order in which the tallying of the results is completed.

The word ‘may’ allows the IEBC to decide whether to announce provisional result updates or simply declare final results. The constitutional time limit to announce results remains 7 days.

Considering that the presidential results at constituency level are now final, there will be no provisional results issued at constituency level. In seven days, a lot of cooking can be done. To wait for seven days to release results will destroy any legitimacy and appearance of integrity.

Our democratic destiny; Kenya’s rule of law will undergo its most difficult test yet on 8 August. There will be peace if Chairman Chebukati’s team releases credible results in a sensible span of time, and if after this, the two principals, Uhuru and Raila, commit themselves to accept the outcome.

The race is tight. Let’s not destroy the shoes for personal gain. The hike with tight shoes cost Raudo a few months’ recovery. Let this race not cost Kenya more useless deaths and years of recovery…because a country never really recovers from its violent past.

Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi