No violence, no demonstrations, just some initial mocking celebrations by Kenya Kwanza overzealous supporters who have since gone mute after realising that it is not over. In fact, the excitement that characterises an election victory does not seem to exist, and neither are we experiencing disappointment from the supporters of the candidates who lost the presidential elections.
Seems like the Supreme Court is becoming a permanent fixture in our presidential elections and the temple of justice before which our fears are allayed and hopes bestowed. Anyhow, a few critics have argued that Kenyans have won because we decided to maintain peace, trust our judicial process and our leaders to seek justice. Essentially, we have given unto ourselves peace and because there can be no lasting peace without justice, it does appear the words of our national anthem – justice be our shield and defender have become the silent rallying call for a better country.
You see, we are in this bright space where it is not so much about the winner or loser as it is about justice and the pursuit of justice that will heighten our trust in our democracy and voting in future elections. Today, Kenya is at a crossroad. One side of the political divide is measured in its approach because of the loss of an election that mathematically does not add up. The other side won a contested victory, and it does seem that they are not only measured in the belief that they won, but also less enthusiastic about a victory that does seem to be contested on some very solid grounds.
Then there are Kenyans of more elevated persuasion who are still wondering how a declaration could be made before all the 34Bs had been announced and tallied! Were they tallied and who tallied them? The screen at Bomas stopped showing the results, and the commissioners stopped announcing the votes, only for their boss to emerge with his tallied final results.
Legal experts have different interpretations of the acrimonious end to the process and the role of the chairman and his commissioners. The most simplistic we’ve been treated to is the fallacious argument that on matters presidential elections, the commission is not a referendum body to decide who has won. This is simplistic and speaks of lack of depth. If the work of the chair is to announce the winner, then the announcement of the winner is not a matter of consensus, but because the commission tallies all the 291 form 34Bs after the due process of verification and tallying, it goes without saying that the other commissioners are part of the process and only a rogue chair abrogate himself the duty of tallying, verification an announcing. What the chairman of IEBC announces and his role as an announcer do not appear to many of us as one and the same, but as lay people we trust the supreme court to provide what will be binding and critical in our jurisprudence as case laws. In fact, the phrase ‘the law is very clear’ has never been ambiguous as lawyers of different political persuasions and legal schools of thoughts interpret the same written text differently. From many legal interpretations the chair can only announce that which is a valid tally of the votes that Kenyans cast and are captured in 34As as tallied in 34Bs. Now to have results and announce them when the whole world can tell that the process was shambolic and shrouded in opaqueness is subversion of justice and the will of the people.
Suffice to note, a divided IEBC as a commission and the four commissioners’ dissociation with what the chair declared portend a very dangerous precedence in our electoral justice system. The bright side of it is that it gives us an opportunity to have legal clarity on the role of the chair and the commission through judicial interpretation and going to the supreme courts offers us a good opportunity of entrenching electoral justice or at least creating a pathway to a lasting electoral justice system. However, given the many petitions from different interested parties it does appear that even if a ruling or order is made – and based on the low threshold for vacating an election in light of the 2017 supreme court legacy – we are staring at not a legal crisis but a public crisis.
If indeed Kenya Kwanza won, then they and their supporters should be happy with the judicial route, but a vacation of their win is not something they will take with grace. We already have peace, and no one will take their win if indeed they won. Fact is that the anomalies are just to glaring and many believe that fake results were declared, and the real winner was denied victory by an enterprise that wants to subvert justice and the will of the people. But does declaring another winner other than the one Chebukati declare provide an easy way out? That is the critical question and so is a fresh election. We will either have a substantive winner with utmost legitimacy or we will have clarity on the culprits who were out to subvert the will of the people and call for retributive justice to deter such activities going into the future. The supreme court will essentially dispense justice judiciously and with utmost finality and whatever the outcome Kenyans will win, but we are likely to end up in a ‘hang’ kind of a situation that will be a public crisis of sort. Maybe a political pathway will follow as a solution.
The author is a PhD Candidate in Media Studies and Political communication.
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