I am not a lawyer. So I will speak from a layman’s legal point of view. I know that elections are sacred. As in any democracy, elections are the means to a prosperous, peaceful and united nation. That is why their conduct are pegged on law.
Our constitution has an entire chapter dedicated to elections, stipulating how it is to be carried out. Knowing how divisive this process can be, the drafters of the 2010 Constitution took their time to give us the best laws to govern it. Coming after the 2007-08 post-election violence and constitutional crisis, they knew that all loopholes surrounding elections must be covered. Never again would elections divide us.
Then there is the Elections Act that further lays down rules on how it should be done.
But the drafters of this constitution failed in one major aspect. In bidding to make it an all- inclusive affair, and to ensure all parts of the country participate in electing both local and national leaders, they provided a provision that for presidential elections to be legitimate, they must take place in all the 290 constituencies in Kenya, as well as the 291st that is the Diaspora.
As well intended as this provision is, the drafters failed to take into consideration a situation where elections are prevented, through violence, from being conducted in some areas through well connived schemes by partisan individuals. The events of the last few days lends credence to this.
Here is a situation where an election has been organised but cannot take place in some 25 constituencies in four counties because of organised violence.
Does it invalidate the outcome of the poll in the other 266 constituencies where millions of voters woke up early in the morning, braved heavy downpours to elect their president?
Granted, the residents of Kisumu, Homa Bay, Migori and Siaya counties have every right not to take part in the elections. It is a right that is well protected by the constitution. But as they say, your right to swing your hand ends where my nose begins.
Here is a situation where people have not just refused to come out and vote, they have prevented other citizens from exercising their right to vote. Here is a situation where violence has been meted out on anyone willing to vote, and in other cases, on people who have blue ink on their fingers. Here is a situation where electoral officials have been beaten up and prevented from serving Kenyans who want to elect their president.
A situation where a governor, a citizen who is supposed to be of good standing, has been reported to have locked away electoral materials and refused to surrender the keys because he does not want the polls to take place in his county.
A situation where some electoral officials – presiding officers, their deputies and poll clerks – refused to turn up for work, not for fear of their lives, but because they are playing to the whims of the National Super Alliance (NASA)’s to not only boycott the polls but ensure those who wish to participate do not do so, through whatever means.
Now, the Independent Electoral and Boundaries Commission (IEBC) finds itself in a catch 22 situation. Chairman Wafula Chebukati is not sure whether to announce the results of the repeat presidential election without conducting the poll in the four counties of Kisumu, Homa Bay, Migori and Siaya. Yet the commission has done all it can to hold polls there. It even announced that it had pushed the election there to last Saturday, but was forced to postpone it due to fears of another round of widespread violence.
What is the IEBC to do? Why should the rest of the country – 43 other counties where people answered the patriotic call to vote — be held to ransom by the actions of violent militia in four counties?
Chebukati should not be held hostage to these shenanigans. He should not play to the whims of the Opposition, which is only interested in creating anarchy and crisis. He has tried his best to hold elections in these counties but is unable.
He should therefore announce the presidential election results and declare Uhuru Kenyatta the winner. Afterall, you can only take a donkey to the river but you cannot force it to drink. The majority have spoken, they must have their say.