There is little doubt that the next weeks will be bring immeasurable pressure on the judges of the Supreme Court as they delve into yet another cycle of election petitions following the sham polls of October 26.
Of course it need have gotten to this had the Independent Electoral and Boundaries Commission (IEBC) done its job well, and had it sought the Court’s guidance following the withdrawal of Mr Raila Odinga on October 10, using the same laws it had used in gazetting just two candidates for the repeat polls.
But IEBC, it decided to vote — yes vote! — on legal interpretation among its commissioners with only one of them being a lawyer!
The easier thing would have been to seek guidance from the Supreme Court but they decided against that on unclear — but certainly not legal — basis.
It need not have gotten to this had the IEBC taken time to reflect on why the previous polls were annulled and gotten all sides to the table to discuss how to remedy the situation.
Yes, IEBC is supposed to be independent, but independence of an institution is not “splendid isolation”.
Independence does not mean no consultations and no accountability.
And it need not have come to this had the Supreme Court raised the requisite quorum to hear the urgent application to put off the elections on October 25.
The lack of quorum was as historic as its September 1 decision, and we are not any clearer what caused the absenteeism.
That lack of quorum raises more issues now. Will the Supreme Court raise quorum this time?
A lack of quorum could mean retaining status quo and, given the divisions in the Court’s decision last time and with one judge indisposed, it could well be that only four show up.
Or it could be that whatever caused the lack of quorum — which is the subject of conjecture and rumours — has caused fear and intimidation enough.
But it would be highly unseemly if judges did not show up on a matter of this magnitude; and moreover, the Chief Justice could always invoke the doctrine of necessity given the weightiness of this matter and proceed with whoever is available.
Nevertheless, it is likely that IEBC and Jubilee — which have never disagreed on matters legal and policy — and the Attorney General, if admitted as amicus curiae, will argue that it is in the public interest not to annul the rerun polls given the cost and tensions in the country, the classic “accept and move on” argument.
They will argue, as reporter Sam Kiplagat of Daily Nation argued on November 8 headlined ‘Eyes on Maraga as fresh presidential election disputed’ that “… the Supreme Court must decide whether to uphold the result or order another election in 90 days and prolong the political crisis that has paralysed the economy and strained ethnic relations.
"Some Sh12 billion was spent on the repeat election and more money will be needed in case it is nullified.”
This is a disingenuous and dangerous argument because it supposes that sham elections are in the public interest and what Kenya requires is any sort of an election, rather than a credible, free and fair one.
And that argument, wrongly, and perhaps deliberately so, asserts that elections are the source of the crisis and divisions in the country.
Nothing could be further from the truth. The reason elections are so volatile is because they are not transparent, nor are they fair, free and credible.
Rather than be a process that can get Kenyans focused on the next five years with a legitimate government that unites us, elections are about those in power retaining it no matter what, and in so doing exacerbating divide and rule tactics with promises of goodies and rewards to those who support the regime.
If the Supreme Court uses the precedent of its historic ruling in September, there can be no outcome other than nullification.
And I suspect the regime knows that, too, hence the unleashing of its attack dog Fazul Mahamed on NGOs suspected to be working on a petition on spurious and laughable grounds, as well as the cutting of power lines to Katiba Institute, which is one of the targeted groups.
Maina Kiai is a human rights activist and co-director at InformAction. [email protected]