Comic relief in petitions and re-election contests

"If, on the other hand, the courts rule against holding new elections, an outcome that seems more likely, there shall be a swearing-in ceremony for Kenyatta and Kenya will go back to business as usual, we hope" (Marco Longari, AFP)

"If, on the other hand, the courts rule against holding new elections, an outcome that seems more likely, there shall be a swearing-in ceremony for Kenyatta and Kenya will go back to business as usual, we hope" (Marco Longari, AFP)

I was wrong in my last column, “Electoral cynicism and the curse of nane nane” (August 17). Raila Odinga’s opposition National Super Alliance has not allowed Kenyans to “accept and move on” after the elections — despite initially telling the nation that the party would not contest the results. So Kenya and the world will only know what will be on September 1.

Although it may appear that the Alliance party prevaricated on its stated plan, the reason for doing so seems, interestingly, valid.

On August 14, the NGO Co-ordination Board, the oversight body for nongovernmental organisations, announced that a leading human rights organisation, the Kenyan Human Rights Commission, had been deregistered, allegedly for tax evasion, illegal bank accounts and illegally hiring experts. The next day the board tried to shut down another human rights organisation, Africa Centre for Open Governance, allegedly for “operating illegally”.

Both organisations had been preparing to take the Electoral and Boundaries Commission (IEBC) to court for election malpractices. The acting interior Cabinet secretary, in an act of benevolence, suspended their deregistration for 90 days.

But this attempt to erase civil liberties with intimidation was worrying enough for the Alliance party to contest the electoral results before the week’s deadline as required by law. After all, few could be sure that the two organisations would not again be banned and thus make it difficult to take the case to court.

In its petition to the court, the Alliance party requested that the election results be nullified. The crux of the case is that the results were announced by an IEBC server without clarity of where they originated; that some numbers on the forms differed from what had been gathered on the ground, allegedly by some crooked presiding officers; and that state officers and funds were used by the incumbent president, Uhuru Kenyatta, to campaign for the elections.

To this end, the Alliance party requested access to the IEBC server, apparently to show that it had been tampered with and that the results do not match those received at polling stations.

My friends and I were surprised when the courts granted the party access, overseen by the registrar of the supreme court, even though it was read-only access. What this means is, if the IEBC and the president-elect are right and Kenyatta won fairly, the court will have given the Alliance party enough rope to hang itself. If, on the other hand, the Alliance is right and there were irregularities in the way the elections were conducted, Kenya may end up having fresh elections within 60 days after the ruling.

Interestingly, the IEBC is not saying that everything went swimmingly with the elections. As in the Oscar Pistorius murder case that gave many lay people the Latin phrase dolus eventualis, this case, whatever happens, will also leave us with a phrase — one on which the IEBC’s defence is resting. De minimis non curat lex, which my lawyer friend Jack translated as meaning “of small things, the law knows no cure”. Essentially then, the IEBC is telling the court that, although there may have been problems, they were so small that they have not affected the outcome of the elections — Kenyatta is the winner.

Kenyatta’s supporters say that, because the country is already in debt, new elections would be an unnecessary and costly exercise. Alliance supporters, on the other hand, argue that justice and democracy cannot be given a monetary value. They further argue that allowing the results of a flawed election to hold will mean a continuation of the impunity that has plagued Kenya with each electoral season, notably in 2007, with disastrous results.

It could mean that people like the United States’ John Kerry and South Africa’s Thabo Mbeki, who were election observers and seemed to push the opposition to accept the results even before the final tallying, will lose what credibility they still have left with the people of Kenya. It could also mean the IEBC will have to be more transparent in the way it conducts elections in the future — which would be a win for any future elections contenders in Kenya. Finally, a positive result for the Alliance party could mean fewer threats to civil society organisations and less erasure of civil liberties.

If, on the other hand, the courts rule against holding new elections, an outcome that seems more likely, there shall be a swearing-in ceremony for Kenyatta and Kenya will go back to business as usual, we hope.

As important as the case is, there has not been a shortage of comic relief. A purported pan-Africanist and former corruption czar is one of the lawyers defending the IEBC. He has worn one of those ghastly white wigs that even the seven judges have discarded.

And I could not help pointing out the irony that this lawyer, a self-confessed plagiarist — he was found guilty earlier in the year of “borrowing” about 5 000 words in his 10 000-word article from another lawyer — is representing the IEBC, which may not have been impartial and may have stolen votes for one of the candidates. It is almost as though the IEBC boss who appointed him wants to lose the case so that there can be a re-election. 

Zukiswa Wanner is a South African writer who lives in Kenya

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