In Summary
  • Tight races are always stressful and the temptation to give up or to cheat is sometimes overwhelming
  • In principle, we have 30 days since the “previous election” to hold a run-off
  • The race is tight. Let’s not destroy the shoes for personal gain

Frank Raudo is one Kenya’s most promising short distance sprinters.

He is not just a runner, but an entrepreneur and a top fourth year law student. He hopes to represent Kenyan in the next Olympic games.

A few months ago, Frank and I went for a hike with some 20 other law students. Our target was to summit Mt Elephant in the Aberdares.

We were not in a hurry but young and energetic people like to race; they have it in their genes. So we were racing to the top.

Raudo’s shoes were too tight. A hiker should never wear tight shoes to climb a mountain. He did not give due importance to this matter, but it became our topic of conversation.

Tight races are always stressful and the temptation to give up or to cheat is sometimes overwhelming.

As we kept sweating our way to the top, struggling to defeat the nasty obstacles that the Aberdares’ bamboo forest had placed on our path, I applied Raudo’s tight shoes dilemma to our country and the forthcoming election.

At that time, the election was still far and back then, Jubilee seemed to have a clear victory. Even if President Kenyatta did not campaign, it seemed a clear outcome, a yes for Jubilee all the way.

Raudo was suffering as he walked. For him the climb was a painful but enjoyable feat. Like Raudo’s shoes, any tight race wears out the last bit of energy any runner has. When Raudo had put on his shoes before departure, they hadn’t felt so tight.

Just like Raudo, some political players thought the race was not tight. The infamous “tyranny of numbers” made too many people think the tide could never swing. Perhaps strategists did not consider the huge influx of a young population that has grown up in cosmopolitan, urban Kenya.

Sometimes, tight races make people do stupid things. This week we had the saddest possible example of such despair. Whoever killed Msando did a very stupid thing, unforgivable and unforgettable.

Another silly move was the publication of a fake TI-Kenya report on how the corrupt opposition governors funded NASA campaigns.

This move was a poorly conceived, blatant lie. The fact is that TI has never done such an investigation nor written such a report and the board has never met over such issues.

TI would never take political sides; it has always looked at corruption as a social evil no matter the political affiliation and never for political gains of any party.

HOW TO HANDLE A RUNOFF

The thin mountain air made us pant heavily and gasp for that oxygen we take for granted at lower heights. As we climbed, we asked ourselves, will Kenya suffer like Raudo with a tight race?

Lawyers are strange people who can discuss any boring piece of legislation with amazing enthusiasm and take pleasure in resolving the problems people did not know they had. 

Our conversation focused on Article 138 (4), (5) and (6) of the Constitution of Kenya. The Constitution gives direction on what is to take place should no presidential candidate win more than half of the total votes cast, and at least 25 percent of the votes cast in each of more than half of the counties. The Constitution says:

(4) A candidate shall be declared elected as President if the candidate receives--

(a) more than half of all the votes cast in the election; and

(b) at least twenty-five per cent of the votes cast in each of more than half of the counties.

(5) If no candidate is elected, a fresh election shall be held within thirty days after the previous election and in that fresh election the only candidates shall be--

(a) the candidate, or the candidates, who received the greatest number of votes; and

(b) the candidate, or the candidates, who received the second greatest number of votes.

(6) If more than one candidate receives the greatest number of votes, clause (5) (b) shall not apply and the only candidates in the fresh election shall be those contemplated in clause (5) (a).

It is not easy for a runoff to happen in Kenya. We are such a politically polarised society that it is likely that one out of two main candidates will always meet the threshold.

But will things change if a 100,000 Kenyans decide to vote for a third-choice candidate? It has happened in other countries and it could happen in Kenya and, in any case, we should be ready for such an eventuality. 

This matter is complex. To begin with, there was a difficult question at the core of the 2013 presidential election petition: What constitutes ‘all the votes cast’? The Supreme Court in Raila Odinga and 5 Others v. Independent Electoral and Boundaries Commissionand 3 others declared that rejected ballot papers are not to be counted as votes, consequently, the term ‘votes cast’ did not include ‘rejected’ ballot papers but rather valid votes cast.

So far, the IEBC has not made public any guidelines with specifics on how a runoff would be occur and one is only left to rely the constitutional text.

Perhaps the Commission thought of issuing more exact guidelines in due time, and that due time, like Raudo’s shoes, has never been an issue…until it starts hurting.

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