These issues will need to be hammered out by the main parties and the IEBC – in line, of course, with the ruling of the Court. The fact that representatives of these institutions have been meeting is therefore a good sign. However, it is not clear that any of the options on the table can deliver the election that Kenya needs.
If the October 26 date stands, it will not be possible to conduct a wholesale replacement of the IEBC’s staff or to implement new technology.
There is simply not enough time. This means that the election will take place under conditions that Raila Odinga has already said are unacceptable to the opposition.
It also means that the elections will be run by a group of people who have spent the last couple of weeks trying to discredit and undermine each other, and whose working relationship has broken down. It would be extremely optimistic to expect a high quality and cohesive poll under these conditions.
Alternatively, postponing the election would allow a more far-reaching set of reforms to be considered. This could include the appointment of new staff, a review of the technology, and the introduction of new systems to protect the integrity of the results. But for this to happen, the election would need to be delayed not just by days, but by months.
In turn, this would generate two challenges. The first is legal. A postponement of this kind would require the constitutional 60 day deadline for fresh polls to be held to be suspended. There is a precedent for this, as it is effectively what happened when the gender quota was “frozen”.
However, it seems unlikely that judges who nullified the election of a president because they believe that they must defend the Constitution at all costs would be willing to set aside the same document just days later.
The second problem is political. A protected delay is unlikely to be popular with either party. While the Jubilee government is keen to hold the election quickly to remove questions about its legitimacy, Nasa knows that the longer the process rumbles on, the longer Jubilee has to enjoy the benefits of incumbency.
In other words, neither of the two main options on the table seems likely to generate a smooth election.
It may be that the best that can be hoped for is an electoral fudge in which no party gets what it really wants but secures just enough to be persuaded to participate.
This might include the appointment of additional staff to the IEBC to represent each party, measures to strengthen electoral technology so that there are no areas in the country from which digital transmission cannot take place, stronger security features for electoral forms, and an agreement that the final result should not be declared until all of the hard copies have been seen both by the IEBC and by representatives of the parties.
However, getting to an agreement on these issues is easier said than done in a political landscape marked by high levels of polarisation and distrust.
At the meeting on Wednesday, September 27, the IEBC and the parties made the right decision when they agreed to make Jubilee’s proposed amendments to the electoral regulations part of the negotiation process.
However, this subsequently led to the meeting being adjourned when it turned out that, despite the numerous images being circulated on social media, no one present had a copy of the documents with them. The second round of talks on the 28th fared little better, with both sides accusing the other of being intransigent.
As is usual in high stakes political negotiations, the two parties have entered the talks demanding things that they know that the other side will not agree to. Nasa’s proposal that election monitors should have a role to play in signing off the results will be a “red rag” to the government, while Jubilee’s proposed changes to the law contravene both common sense and the Constitution.
The problem is that whittling these kinds of demands down to a set of mutually agreeable reforms usually takes months. Right now, Kenya has days.
Nic Cheeseman (@fromagehomme) is Professor of Democracy at the University of Birmingham