Why loser of March election may not concede defeat

Saturday January 5 2013



My crystal ball tells me the ghost of the 2007 election may come back to haunt the 2013 polls. That’s right – the jinx of 2007 may bite us again in March.

I wish I had more cheery news, but I don’t. The “tea leaves” are telling us something sinister – let’s read them without emotion, or tribal myopia.

You know what they say about history – those who don’t learn from it are bound to repeat it. Methinks we are history-blind, and prognosis-deaf. In matters politics, most of us listen to our hearts, not our heads.

We wishfully think, and don’t thoughtfully wish. I have five reasons why the loser of the 2013 election may not concede defeat.

First, the main protagonists look eerily similar, give or take a few additions, or subtractions. There are two main challengers who face each other across a huge chasm.

Theirs is a blood and ideological feud.

If the courts don’t bar Deputy Prime Minister Uhuru Kenyatta from contesting, he is certain to face PM Raila Odinga.

The psychosis of such a contest ought to be clear to all and sundry. Like in 2007, a Kikuyu candidate will face a Luo contestant. This might otherwise be OK, but history tells us it’s not.

The names Odinga and Kenyatta conjure up bad history. The father of the latter mistreated the father of the former. Then the scions locked horns in 2002 and 2007.

In 2002, Mr Odinga denied Mr Kenyatta the presidency when he led a mass exodus from Kanu and said “Kibaki Tosha”.

In 2007, Mr Kenyatta paid Mr Odinga in the same coin – he said “Kibaki Tosha”.

Mr Kenyatta was then fingered by the International Criminal Court as among other Kenyans bearing the greatest responsibility for the post-election violence.

He wears the indictment for crimes against humanity like an ugly “bling” around his neck. He has blamed Mr Odinga for his woes at The Hague. Although a false fabrication, Mr Kenyatta has got his fanatical supporters to drink this laced Kool-Aid.

Their delirious devotion to Mr Kenyatta may not allow them to accept defeat. This is especially true if Mr Kenyatta balks at the results.

Second, a mano-a-mano duel between Mr Odinga and Mr Kenyatta has negative tribal implications. It pits “Kikuyu entitlement” against “Luo victimhood”. The Kikuyu have produced two of Kenya’s three presidents. The Luo none. The Luo might feel a third Kikuyu president is too much to bear – especially if the third is named Kenyatta.

They think “it’s their turn”. Besides, they feel the Kenyan state has either eliminated, or persecuted to irrelevance, their brightest political stars. A few names come to mind – TJ Mboya, Robert Ouko, Jaramogi Oginga Odinga.

PM Odinga himself served almost a decade in detention. This is the kind of history that could explode.

Juxtapose this against the “Kikuyu entitlement” to rule and the picture isn’t pretty.

Third, we seem to have a bungling IEBC, just like former chair Samuel Kivuitu’s ECK in 2007.

IEBC chairman Ahmed Issack Hassan started off with great promise as interim chair. He won high marks for conducting a number of by-elections with professional acumen.

But he has since “gone south”. Public confidence all but vanished after several blunders and missteps.

The near-debacle over the sourcing and delivery of biometric kits almost caused the entire system to swoon.

Missed deadlines, delays, and glitches in voter registration were very damaging.

IEBC’s failure

The IEBC’s failure to vet candidates adds to its woes, as was denying Kenyans in the Diaspora the right to register and vote.

Will IEBC perform under pressure in March?

Fourth, one can imagine a beleaguered IEBC chair in March faced with surging mobs of Jubilee and Cord supporters, each furious that “their man” actually won.

Does Mr Hassan have the fortitude to speak with authority and finality?

The opposing sides will exploit any appearance of weakness in Mr Hassan and the IEBC to make unreasonable demands, including rejecting the results.

They will cry fraud – whether real or fake – to discredit the results.

I can’t emphasise how key a neutral and firm hand by Mr Hassan and the IEBC will be.

Fifth, and lastly, the bane of the last election was the closeness of the final tally.

Elections are generally stolen when the vote is close. Had VP Kalonzo Musyoka’s ODM-Kenya run with either Mr Odinga or Mr Kibaki, the outcome would have been indisputable.

The beneficiary of Mr Musyoka’s vote would have won convincingly, making it impossible for allegations of fraud to be credible.

In my view, such an action by Mr Musyoka would have made moot post-election violence. That’s because no candidate would have been able to allege he was either “robbed,” or he “won” when he may not have. But I am afraid that a Cord-Jubilee contest is likely to split the vote down the middle.

An evenly split vote is a recipe for chaos, even if the winning party barely scores 50 per cent plus one. In fact, it’s better no party wins in the first round, and that one – either Mr Odinga or Mr Kenyatta – is knocked out and ineligible for the second round.

This could defuse a terrible standoff. The hope is that either candidate wins with a commanding majority to make it impossible for vote-stealers to cook up a false result. That’s what could send Kenya off the cliff. Let’s hope not.

Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC. Twitter @makaumutua.