Holding an election without obeying court orders is futile

Maina Kiai by Maina Kiai
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The dramatic resignation of Dr Roselyn Akombe from the IEBC, and chairman Wafula Chebukati’s statement expressing doubt that he can deliver a credible, free and fair election, are monumental.

Anyone who seriously believes that any “election” conducted on October 26 will be more than a selection exercise must be living on Mars! And yet again, Dr Akombe’s resignation and the chairman’s statement have exposed the folly of international election observers who had endorsed the selection preparations as adequate.

How they could do this, without even questioning why the IEBC has still not opened up the servers from the August election, and while maintaining the same staff and structures for October as in August — as Dr Akombe’s eloquent internal memo to her chair states — is a mystery. 

But it is decisions like these that weaken international election observation and degrade their potential impact.

ELECTIONS

We are at a crucial juncture in Kenyan history and it is a time when reason should prevail. Some have been stressing that holding the election on October 26 is a constitutional imperative ordered by the Supreme Court, but they conveniently ignore the Court’s demand that the elections be held “in conformity with the Constitution and the laws.” That rider is huge, for laws are made for humans, not humans for laws.

Let us not forget that in 2012, the High Court ruled that rather than holding the elections on the second Tuesday of August 2012 as mandated by the Constitution, they would be held in March 2013, which we all accepted. 

It is clear that holding elections with the anger, hatred, divisions, and threats — for the Jubilee supporters clad in military fatigues are a clear threat meant to intimidate non-Jubilee supporters — currently engulfing us will only make things worse.

This is similar to Yoweri Museveni’s elections in Uganda, when tanks, armoured personnel carriers and heavy weapons are brought out of the barracks on the eve of elections. 

And it is reminiscent of Charles Taylor’s campaign slogan in Liberia in 1997 of “He killed my ma, he killed my pa, but I will vote for him.”

BLOOD

This is the time to step back and think about Kenya and Kenyans. Our primary goal surely has to be reducing human suffering as the Catholic Bishops have been asserting. 

And it must be to take actions that are the least harmful to Kenya and Kenyans. And that means that we do not do anything that ends up with the blood of even more Kenyans spilt, after the 67 who have already been killed.

As it stands, any exercise on October 26 will not have credibility and will be challenged in the Supreme Court which assured us that it would not hesitate to annul elections that do not meet the constitutional threshold.

We already have statements from Dr Akombe and chairman Chebukati confirming that meeting the constitutional threshold will not be possible. 

And we know that the Court order to open up the servers has not been complied with, making that an ongoing violation of the law.

VIOLATION OF LAW

As we are still in the ongoing electoral process, the continuing violation of the law and the Court order must negatively affect the IEBC’s claims to being ready, even if it does open up the servers in October.

And if the IEBC and Jubilee — who never seem to disagree on anything — insist on holding the selection while Nasa supporters exercise their legitimate right to protest, then the result will surely be tens if not hundreds killed by the police. Is this something chairman Chebukati wants on his head?

It is simple really and a matter of common sense and patriotism. Any exercise carried out on October 26 will bring neither legality nor legitimacy. Nor will it bring certainty or predictability.

Instead, it will be the benchmark for a country that will be unstable, economically fragile and increase the divisions and hatred. If Jubilee’s calculation is to offer talks after a swearing in — so as to preserve some power — that will be too little too late. Much like it would be futile for credibility — even if morally the right thing — were Ezra Chiloba and his accomplices in the secretariat and Commission to leave now.

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