QUESTIONS NO ONE IS ASKING
There are several relevant scenarios we should be ready to face. For example, what would happen if no candidate meets the constitutional threshold and one of the candidates goes to court?
In principle, we have 30 days since the “previous election” to hold a run-off. If one candidate goes to court, the court has 14 days to decide. Considering that the announcement of a run-off could be made on 15 August (IEBC has 7 days to issue final results), any of the candidates may have until 22 August to go to court and the courts may reach a final decision on 7 September or thereabouts.
If the court withholds the validity of the IEBC announcement of a runoff, then the IEBC has less than 24 hours to prepare it, print ballot papers, and do whatever is necessary to meet the constitutional mandated periods. This is impossible.
Clearly, the Constitution did not envisage the possibility of one or more candidates moving to court in the intervening period, between the time when Round One results are declared and a runoff is held. Article 140 of the Constitution only envisages such a case only after the president-elect is declared.
Article 140 says:
(1) A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election.
(2) Within fourteen days after the filing of a petition under clause (1), the Supreme Court shall hear and determine the petition and its decision shall be final.
(3) If the Supreme Court determines the election of the President- elect to be invalid, a fresh election shall be held within sixty days after the determination.
As it stands, there is a constitutional abeyance. It should naturally be sealed by legislation, precedence or past practice but unfortunately, there is silence in all three.
One of our hikers was Cecil, a thoughtful young lawyer and scholar in the making. In his opinion, the Supreme Court, which has original and exclusive jurisdiction for all matters to do with the presidential election under Article 163 (3), can intervene even before a runoff.
Rule 12 of the Supreme Court (Presidential Election Petition) Rules, 2013 provides that one of the grounds on which presidential elections could be challenged at the Supreme Court includes, “a) the validity of the conduct of a presidential election.” Such a challenge does not, logically, require the declaration of a president-elect first.
Tight races are always uncomfortable, and often dangerous for society. Anything may be interpreted from the conspiracy perspective. The temptation to cheat is real but cheating is not sustainable, and little by little, repression sets in to silence a restless, repressed majority.
In 2007 the numbers did not match reality. Delays and uncertainty fuelled conspiracy, hopelessness and marked the beginning of dark democracy years.
It is not that there had never been any cheating in post-independence Kenya, but this time cheating was sugar-coated with an appearance of truth. Violence swept the country.
It had been a tight race and the shoes had destroyed the runner. We have run a bad race, badly managed. Perhaps to prevent a repeat of 2007, Ezra Chiloba, CEO of the IEBC, has very recently declared that results will not be periodically updated but will collate all the 290 constituencies and then declare final results.
This seems to be within their mandate, as the law does not force the IEBC to give periodic updates. However, everyone in the IEBC must have clear in their conscience that the future of Kenya depends right now on their honesty, integrity and the credibility of the process.
Article 138 (10) of the Constitution simply says that:
Within seven days after the presidential election, the chairperson of the Independent Electoral and Boundaries Commission shall--
(a) declare the result of the election; and
(b) deliver a written notification of the result to the Chief Justice and the incumbent President.
This matter is further dealt with by Section 39 of the Elections Act 2011, which says that,
(1) The Commission shall determine, declare and publish the results of an election immediately after close of polling.
(2) Before determining and declaring the final results of an election under subsection (1), the Commission may announce the provisional results of an election.
(3) The Commission shall announce the provisional and final results in the order in which the tallying of the results is completed.
The word ‘may’ allows the IEBC to decide whether to announce provisional result updates or simply declare final results. The constitutional time limit to announce results remains 7 days.
Considering that the presidential results at constituency level are now final, there will be no provisional results issued at constituency level. In seven days, a lot of cooking can be done. To wait for seven days to release results will destroy any legitimacy and appearance of integrity.
Our democratic destiny; Kenya’s rule of law will undergo its most difficult test yet on 8 August. There will be peace if Chairman Chebukati’s team releases credible results in a sensible span of time, and if after this, the two principals, Uhuru and Raila, commit themselves to accept the outcome.
The race is tight. Let’s not destroy the shoes for personal gain. The hike with tight shoes cost Raudo a few months’ recovery. Let this race not cost Kenya more useless deaths and years of recovery…because a country never really recovers from its violent past.
Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi