Kenyans keep learning from their past regarding election processes. After the 1992 elections, which brought Daniel Moi back to power in suspicious circumstances, Kenyans understood that without major electoral reforms the country would continue its downward spiral into poverty, theft, land grabbing and atrocities.
Thus, in 1997, under the leadership of the civil society symbolised by the Rev Timothy Njoya, Prof Kivutha Kibwana, Davinder Lamba, Njonjo Mue, Willy Mutunga, Gibson Kamau Kuria, Kepta Ombati and I, Kenyans took to the streets demanding constitutional reforms before elections. The movement for change grew with every weekly protest, even as each was brutally attacked by the police. Rather than weakening Kenyans, the police response emboldened us.
These 1997 NCEC protests benefited from the presence and support of many politicians. James Orengo, Raila Odinga, Kiraitu Murungi, Paul Muite and Mukhisa Kituyi were constant at the weekly protests. Even Mwai Kibaki participated in his first and only protest at Uhuru Park, where he was promptly tear-gassed.
Neither Uhuru Kenyatta nor William Ruto supported these protests, siding instead with those using violence and brutality against peaceful Kenyans.
The protests led to changes after the Moi regime was forced to dialogue within the Inter-Parties Parliamentary Group (IPPG) which led to changes in electoral laws — including a balanced election body — as well as the repeal of certain repressive laws.
The 2002 elections were easily the most credible ever, partly because of that reformed electoral commission. That Uhuru Kenyatta quickly conceded undoubtedly helped.
Today, the vocal resistance of Kenyans, across the divide, against “six-piece voting" is positive. Kenyans know that if they allow one man to decide their fate at the lower levels they get nothing in return but arrogance, theft and perfidy. Yes, some of the independents are in it for pure ego, but many are resisting politicians determined to increase sycophancy as they eye 2022.
Second, and because parts of the Judiciary are exhibiting courage and fidelity to the Constitution, Kenyans have been closing loopholes that have been used to steal elections.
The losses that IEBC has suffered in court can’t be attributed to incompetence or a misreading of the law. Rather, it is malevolence and bad faith, as the Court of Appeal eloquently stated in affirming the High Court decision on the finality of results at the polling station. On page 84, the court states: “It will be recalled that the High Court annulled Section 39(2) and (3) of the Act and regulations 83(2) and 87(2) (c) on 7th April, 2017. One would have expected the concerned institutions… to either comply with the determination of the court or if aggrieved, to challenge it in this Court as the appellant did within two weeks on 24th April 2017. Instead, 14 days following the delivery of the judgment impugned in this appeal, the appellant issued a gazette supplement, being Legal Notice No. 72 of 21st April, 2017, making drastic amendments to the Elections (General) Regulations 2012, whose effect was clearly to render impotent and circumvent the declaration by the High Court of the inconsistency with the Constitution of section 39(2) and (3) of the Act and regulations 83(2) and 87(2) (c). For instance, Form 34 which was headed “Declaration of Presidential Election Results at a Polling Station” has been replaced by two forms, Form 34A and 34B, the former now headed “Presidential Election Results at the Polling Station” and the latter “Collation of Presidential Election Results at The Constituency Tallying Centre”. Form 34C is the one to be used in place of Form 37 for the final declaration of the result of election of the President at the national tallying centre. The new regulation 87 specifies that upon receipt of Form 34A from the constituency returning officers the Chairperson of the appellant shall “verify the results against Forms 34A and 34B received from the constituency returning officer at the national tallying centre.
The controversial regulations 83(2) and 87(2) were not affected by the amendments, and the object is not difficult to see. The High Court, having found those regulations to be inconsistent with the Constitution, it was in bad faith for the appellant to re-enact them while pursuing this appeal.”