The last fortnight’s events spell trouble for Kenya in what is becoming an increasingly arduous and tangled election saga. On 26th September, Jubilee MPs declared their intent to change electoral laws in time for the re-run.
There were a number of major changes, which sparked resistance in the Opposition and contributed to the withdrawal of Odinga from the race, declared last week.
The first request was to broaden the selection of people permitted to swear in a new President. At the moment, this has to be done by the Chief Justice. Jubilee would like to widen this to any Judge from the High Court. The Supreme Court’s decision to annul the August election results has clearly shaken government and its watering-down of the authority required to swear in a new leader could be interpreted as a preemptive strategy. Judging from comments made by the President, he believes Chief Justice Maraga does not support the Jubilee party. By allowing less senior judges to swear in a President, it would increase the chances that there would be a Judge willing to swear in a Jubilee President if the same problems that caused the judiciary to reject the election recur in the re-run.
The second Jubilee request related to manual voting. In the August election, voting was manual at the constituency level. After this, votes were transferred to electronic kits, which were then sent to Nairobi. The government now wants to unfurl manual voting across the whole system, if the electronic kits should fail at any point. Instances where this had happened in August were amongst the reasons the Supreme Court invalidated the August vote in the first place- by legislating for it, the government would frog-leap the hurdle. The problem here, is the appalling track record of manual voting in Kenya for being manipulated. Ballot-stuffing and miraculous inflation of voting numbers in transit to central counting stations are not uncommon, and we should question why the government would become preoccupied with a return to manual voting rather than strengthening the digital backup systems.
A third request is similar to the first in its readiness to dole out responsibility to sympathetic bureaucrats. The government has suggested that the Chair of the IEBC should not be the only person qualified to read the election results, and that the Vice Chair should also be allowed to make the statement. The current IEBC Chair is thought to lean towards the opposition, while the Vice is thought to be more sympathetic to the incumbent. The logic here is troubling to say the least. The move implies that Jubilee, rightly or wrongly, do not trust the IEBC Chair to read the results either truthfully or in a timely manner. Rather than address the independence of the IEBC, the response is merely to levels the playing field by inviting other potentially corrupt officials onto it.
In terms of passing its legislation, Jubilee certainly has the numbers to do so in parliament. Obviously this has distressed the opposition, and NASA has been using these requests to claim that Jubilee is not playing fair and does not have the goodwill to carry out new elections.
This outcry, paired with the increasingly small likelihood that NASA’s “irreducible minimum demands” will be met, may mean that we will not have an election on 26th.
The irreducible minimums are a set of numerous changes, published in early September, that the NASA cohort would like to see changed before a new election to address the problems it saw in the August run-off. They include changing the company that printed the ballot papers, Al Ghurair, because some of the last ballot papers were missing key security features. They have also alleged that French company Safran OT-Morpho, the company which provided the electronic kits and transfer systems, was involved in bribery and failed to block unauthorised access to its servers.
The sacking of IEBC staff also ranks high on NASA’s list of demands. They argue that the those who proceeded over the last elections and all its failings cannot be trusted to get it right on a second occasion.
Last week, Raila issued a statement saying that he would withdraw from the presidential race due to the fact that the irreducible minimums would not be met in time for the 26th October, the date set for the re-run. Many accuse him of purposefully trying to destabilise the situation and provoke protest, yet in reality there is little NASA can do to leverage the changes it wants to see.
Jubilee has the numbers in parliament to pass its recommendations and being the incumbent party, has control over the use of state security to crack down on street protests in support of the opposition, which they have done- to the extent of indefinitely closing the University of Nairobi over student protests.
Now there are whisperings of secession among some opposition factions. Although dreams of an independent “Canaan” might remedy the present anxiety of some NASA supporters, it is a plan which would be very difficult to realise. First of all, there would need to be referendum in states supporting succession, and this would need the blessing from the Nairobi government to avoid ending up in a version of the Catalonian stalemate. Even if this were to happen, what would partition look like, and would it even work? The fact that such an extreme move is starting to be openly discussed point to the deep dissatisfaction being felt in some corners of the country with the country’s institutions, and the feeling that due process is out-of-reach for most.
Who know how things will evolve? One thing is for sure: the next few weeks will be very interesting indeed. I would go as far to say that the coming days have the potential to define Kenyan politics well into the next decade- we are truly in uncharted waters.