Expect the same consequences if polls team does not reform

Maina Kiai by Maina Kiai
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The barrage of tirades against the Supreme Court, including personal insults and rent-a-crowd ‘protests’ against specific judges, is not about the ruling and judgment from this week.

Oh no! These attacks are about the forthcoming October 26 elections and are an effort to intimidate the Supreme Court from even daring to imagine it can nullify, once again, the certain and expected results that will emanate from the IEBC if it continues in its current ‘business as usual’ style.

The avalanche of abuse, fake news, incredibly vicious video clips, and attacks are aimed at making the judges the focus of the news, rather than the judgment, hoping that we can ignore the fact that fake forms were used, and that the IEBC Chairman declared the results without all the forms required. It is a way to shift blame from the illegalities and claim victimhood, even though they wield power.

The attacks are a tried and tested tactic of intimidating judges so they bend over backwards to appease the attackers. Some will recall the attacks on then Chief Justice Willy Mutunga before the petitions in 2013.


Given the judgment then, it could be construed that the tactics worked as the Mutunga Court produced an incoherent judgment that maintained status quo, referencing only the oral submissions, despite the mass of written and video submissions!

Thankfully, the Maraga Court has restored judicial integrity in repudiating the very low standards set by the Mutunga Court.

Some will not agree with the four judges of the Supreme Court who found serious illegalities in the conduct of the August elections. I doubt anything can shake their belief, preferring to see violations of the Constitution as “minor” and “technical.” Judge Njoki Ndungu’s surprisingly long dissent, in which she claims she went through all the disputed forms on her own and found nothing wrong with any of them — after the court ordered scrutiny with all parties present found the exact opposite — only adds fuel. 

We should question the veracity, appropriateness and legality of this secret and individual scrutiny absent the parties to the case. It is highly irregular, increases divisions in the country and the court, and could lead to judicial tyranny if it were to become precedent. 


Nevertheless, we are now diving headfirst into the October elections, with an IEBC that has powerful sections within it determined to do the same thing as in August — with the same personnel, systems and opaqueness — and expect that we will magically get credible elections. As they say, “insanity is doing the same thing over and over again and expecting different results.”

If IEBC does this, and no matter our political or ethnic divides, we should really be worried, for the options are all scary and nerve-wracking.

Going to elections as is, or with superficial changes, will mean a flawed election that contravenes the Constitution and with the result pre-determined. That will then lead to rejection of the results and a possible petition at the Supreme Court. Chief Justice Maraga has forewarned that if this happens, the Court will happily nullify the polls.


Can the IEBC re-structure itself, its systems and personnel, sufficiently before October 26 to deliver an election process that is credible? Can it be more transparent and open up all its servers, now and during the elections, as well as train and vet its officials to ensure integrity in the weeks left?

And if it can’t, which is more likely, then what? Will the Supreme Court have the guts to do the right thing as it did in September? If it does, would we really have to go into yet another, possibly flawed, election in 60 days? Is holding a bad election now better than postponing it till we can have a good one?


Clearly the best thing — and in Jubilee’s interests — is for IEBC to sit with the two sides and agree on the changes demanded that increase transparency and accountability. This should not be difficult for Jubilee, given its frequent claims of popularity. Rejecting sensible changes that increase openness, transparency and accountability negates these claims of popularity.

Importantly, if they were to win after such changes, there would be nothing for Nasa to complain about.


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