Leaders should be chosen for us at the ballot and not by lawyers in courtrooms

Sunday September 3 2017

Voters queue to cast their ballot at Moi Avenue Primary School on August 8, 2017.  Leaders should be chosen for us at the ballot and not by lawyers in courtrooms PHOTO | JOAN PERERUAN | NATION MEDIA GROUP

Voters queue to cast their ballot at Moi Avenue Primary School on August 8, 2017. Leaders should be chosen for us at the ballot and not by lawyers in courtrooms. PHOTO | JOAN PERERUAN | NATION MEDIA GROUP 

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Friday’s verdict of the Supreme Court was an out-and-out thunderbolt: “A decision is hereby issued that the elections held on August 8 were not conducted in accordance with the Constitution and the applicable law. The results are, therefore, invalid, null and void.”

Decided by a majority of four to two, it means the court would still have found for Mr Raila Odinga, the first petitioner, had their ailing colleague Ibrahim Mohammed participated in the judgment.

By its action, the court has planted itself in the centre of Kenya’s political arena.

First, the apex court set a local and African precedent.


It overturned a declaration by the Independent Electoral and Boundaries Commission (IEBC) three weeks ago that President Kenyatta had won re-election with an impressive 8.2 million votes to Mr Odinga’s 6.7 million.

This means Kenyans must head back to the polls in 58 days to choose again between President Kenyatta and Mr Odinga in what will be an even more emotional, poisoned and fiercely fought re-run.

There will not be six, but just one election, the mother of all polls.

Second, the court scorched IEBC: “Elections are not an event but a process. After considering the totality of the entire evidence, we are satisfied that the elections were not conducted in accordance to the dictates of the Constitution and the applicable principles.”


This is a damning indictment of IEBC and of Chairman Wafula Wanyonyi Chebukati, a lawyer of longstanding repute, and Chief Executive Officer Ezra Chiloba, a disciplined, governance and policy-oriented 39-year-old. The polls umpire appears a poisoned chalice.

Third, taking the cue Mr Odinga and Mr Kalonzo Musyoka, the second petitioner, lit into IEBC accusing it of crimes against the people of Kenya and calling for the prosecution of its top officials.

And Mr Musyoka said they do not have faith IEBC can conduct a credible election.

Fourth, stunned Senior Counsel Ahmednasir Abdullahi, appearing for President Kenyatta, termed the verdict a political decision, suggesting that he stood by his submission that the court could annul a presidential election only if it found that voters had made a mistake!


Fifth, President Kenyatta and Jubilee Party were thrown into turmoil especially because the court did not find them to have committed any offence.

But they now are guilty by association for they defended and expressed faith in IEBC where the petitioners made a fetish of accusing it of planning to rig the election.

Fifth, many supporters of the President will feel hard done by.

They have confidently argued that Jubilee’s overwhelming majority in the twin Houses of Parliament and governorships proves the electorate gave the President political capital to spend over five years.


Last, which could well be first, many must wonder how Mr Odinga would govern were he to beat Mr Kenyatta at the repeat poll given Jubilee’s dominance in the Legislature.

It is a bridge each side of the political divide will cross when it comes to it.

But Mr Kenyatta and Mr Odinga will pull all the stops out to win in November.

The former to avoid becoming a one-term president and the latter to avoid emulating his father as hero who reigned but never ruled.


But, as we start the road to November, I would like to argue that it would be tremendously judicious and resource-saving if we counted our votes right, tallied right, transmitted the results right and announced the right results to avoid the courts altogether.

Our leaders should be chosen for us by us at the ballot and not by lawyers in courtrooms.

For every legal proviso or argument, there will be as many interpretations of it and counter- arguments as there are lawyers.

For me, a layman, this petition turned on counting, tallying and transmission of results or Forms 34A and 34B and one Form 34C of the returning officer of the presidential election.


The next course of action by Parliament, civil society or IEBC therefore must ensure our process of casting votes, counting, tallying and conveyance of results is foolproof.

Leaders come up with solutions to crises to ensure they do not recur.

Kenya faces a crisis occasioned by inability to count votes and agree the result is correct.

Presidential polls must be decided by counting and tallying by IEBC and not by lawyers arguing about shifting the burden of proof or properly written affidavits.

IEBC must just learn how to deliver credible elections starting with November’s mother of all polls. 

Opanga is a commentator with a bias for politics [email protected]