Ad infinitum is an Italian phrase which means repeating the same thing over and over again. In the context of the Kenya election impasse since the annulment of the presidential election in August 2017, a re-run has been scheduled for October 26, 2017. It looks highly likely that the re-run may also be disputed because it appears the illegalities and irregularities that caused the annulment have not been resolved to offer an election free of those illegalities and irregularities. Hence, my prediction that the re-run may be disputed and possibly a second re-run ordered by the court. Will the court be brave enough to annul the re-run outcome should it occur given its bashing by President Kenyatta? Your guess is as good as mine. In this conversation, we look at the judgement of the Supreme Court of Appeal; if the Independent Electoral and Boundaries Commission (IECB) has made any changes to comply with the law; consequences of non-compliance and so on.
Supreme Court of Appeal judgement
It would appear that when annulling the 8 August poll, the Supreme Court of Appeal somewhat did not give clear directions on how the irregularities and illegalities should be dealt with so that they do not recur in the re-run or future elections. This would have been the general expectation. In instances where it made findings like the infiltration and manipulation of IECB IT system, compromised transmission of electronic votes, it is difficult to see how these findings will be dealt with to disable recurrence. For example, the court had directed that Odinga’s party be granted access to IECB computer servers to ascertain for itself if they were breached one way or the other to influence poll outcome. Partial access was granted but it never really satisfied or addressed Odinga’s concerns in the end that the servers could not be tempered with in the future. It emerged during arguments by Odinga’s counsel that indeed access to the servers was never fully granted as envisaged. The court also appeared to have failed to explicitly pronounce on what should happen to the IECB commissioners, individually and/or collectively in light of the failed presidential election. In the end, the court judgement appears to have not solved the recurrence of the irregularities and illegalities.
Is the IECB reformed to deliver a credible re-run?
Soon after the annulment of the 8 August poll, the main challenger to President Uhuru Muigai Kenyatta, the Rt. Hon Raila Amolo Odinga demanded the reformation of the IECB such that the ‘bad apples’ that caused annulment are removed. He demanded what he called ‘irreducible minimum standards’ to ensure delivery of a credible election re-run. His argument was, which still is the case, that the commission that delivered the annulled election, could not probably and possibly deliver a credible election unless bare minimum standards were met! A fair point I thought! It is common knowledge that this demand was rejected with Odinga withdrawing his candidature. The Chairman of IECB has of late suggested that he does not believe that his organisation can, or will deliver a credible election given the instabilities besieging it. The resignation of one of the commissioners this week who revealed that the commission is seriously divided along partisan lines, further puts the IECB on the back foot to be unable to deliver a credible re-run free from irregularities and illegalities. This without question, suggests that once the IECB has lost confidence in its ability to conduct a credible election re-run by its own admission, such election re-run may very well be doomed if it takes place or that a repeat of the first may occur. If this were to happen which looks very likely, another petition to the Supreme Court of Appeal could very well be in the making.
The failure of the IECB to reform brings in some questions. The ruling Jubilee party has shown very little interest if any to help address electoral issues that caused the annulment of the first election. It could be argued that the flaws in the electoral process may have helped Kenyatta’s party ‘to do’ well in the first election whereupon any changes to address them may put the party at a huge disadvantage to win with a comfortable margin. Remember that in the annulled election, Kenyatta won by about 1.4 million votes. It is reported that the IECB is unable to reach decisions on a consensus basis where every decision is through voting by commissioners. The inference here is that because the commission is divided along partisan lines, the group that always prevails during a vote is the one that resists some form of reform.
The consequences of IECB failure to comply with the law
As discussed above, almost everything and anything that rendered the annulled election is still in place. It means for example that Kenyatta’s party will maintain a consistent lead in incoming votes from constituencies as was the case in the 8th August election regardless of whether Odinga participates or not. The political atmosphere in Kenya has been tense with protests staged by Odinga turning violent with serious casualties. About 100 people or so are reported to have so far died in election related incidents ever since the electoral mode became ad infinitum, a situation likely to be uglier on the re-run day.