Prof. Dr. Halimu Shauri
The year 2017 ushered the second round of general elections in Kenya’s history after the country emerged victorious in enacting a new constitution. The Constitution 2010 ushered hope for many Kenyans and the world as evidenced by the accolades the country received internally and externally for the milestone. You may ask why do I consider this a milestone? This is because many countries have tried to modernize their constitutional order and have failed, while others have produced serious dictatorships and others bloodshed. The Constitution 2010 is touted as one of the best in the world. Why you may ask? It places the sovereign power of the state in the hands of Kenyans (Its Kenyans to decide), has an elaborate bill of rights and fundamental freedoms, has a clear and progressive chapter on leadership and integrity among other excellent Articles. Where am I heading to you may be asking?
To answer your question candidly, Kenya tested its first general elections in 2013 under the Constitution 2010. The whole country was happy and excited with the new dawn in governance, especially the coming in of Governors, Women Representatives and Senators, hitherto absent in the older constitutional order. The constitution has ushered an era where leadership is closer to the people and power had been devolved to 47 counties. While this was a great idea in spreading power far and wide, one omission was obvious in the lack of involvement of economists to determine the cost involved in implementing the new change and in diving national resources. As you are aware 85% of the national resources were retained at the national level and the 47 counties have to divide the remaining 15%. What is wrong with this current scenario you may be asking? The retention of the lions share (85%) at the national level means that too much power is actually retained at this level, in that resources define power. While I believe a working and sustainable devolution requires a delicate act of balancing resources and power, our devolution scenario failed to balance these two scenarios.
The poor balancing of power and resources, which falls in the field of political economy, happened at three levels. Scenario one, Women representatives who represent women in the whole county and members of parliament who represent just a constituency in a county in what is called Constituency Development Funds (CDF) and the National Government Affirmative Action Fund (NGAAF). Who should have more power and resources? I leave the answer to this question to you. In scenario two, we have the Senator who seeks votes and represent the whole county and the Governor. The Governor receives billions to run the county while the senator receives some token to enable him/her spectate and not even police the governor. Thus, what happens in county management makes your guess not to be inferior to mine. The third and final scenario, which forms the gist of this article, is the retention of the 85% at the national level. The amount of resources is huge and hence it needs commensurate amount power to go with it. The large mass of resources and power is the subject that has now locked horns of the two national perennial bulls, holding the country at ransom since 8/8/2017. You may be wondering where my thoughts are heading to?
Yes, they are headed to the hotly historical, since 2013, contested presidential seat that ended in the supreme court in 2013 and is now back in the same court 2017 with aspersions of not just ending there depending on the ruling. Because this matter is before the Supreme Court, we will delve into it further when the Supreme Court judges are through with the case so that we don’t cloud their thoughts and judgements as they deliberate this delicate and precarious case that has put Kenya on the pivot of glass, ready to break or mend any time. However, the question this article asks has nothing to do with what will go on in the Supreme Court but has all to do with the consequence of the court process. You must be wondering how? Don’t wonder aloud, I will be generous as usual to ask the question; Is it Uhuru or Raila? Or is Kenya going to the ballot box again? I will leave, inter alia, the first part of the question to the honorable judges till another day when we do a post-mortem of their verdict. However, I will focus in my Article on the second scenario; Or Is Kenya going to the ballot box again?
I want to build this scenario by hypothesing that the Supreme Court may announce a repeat of the presidential elections. If this will happen, it is important for the country to prepare for such an eventuality already psychologically, emotionally and practically. The idea is to ensure that the country, which we love very much, remains peaceful and that’s why I guess the Supreme Court process was engaged by the opposition (NASA) to fill the void missing in our hearts and mind of no peace without justice. Now, suppose the window of justice declares fresh presidential election, are you as Kenyan ready psychologically and emotionally? I leave you with your answer to this question but I encourage all Kenyans to struggle with themselves to prepare already for peace and sustainable stability of our beloved country by coming to terms with this hypothesized eventuality if it will be. Pascal Bett once said whatever you think exists, hence we must prepare as a nation.
While you are grappling with your psychological and emotional innuendos to come to terms with the proposed scenario, I choose to pick the practical concern raised in the third part of the question whether Kenyans are prepared psychologically, emotionally and practically? In this scenario, I would want to ask; Who then will be the referee this time to warrant peaceful and acceptable presidential re-run and avoid recurrence of the current scenario? Why am I asking this? Am not oblivious of the scenario that the Supreme Court may order a re-run, what scares me most is if, hypothetically, Raila emerges a winner in the re-run and Uhuru also goes to the Supreme Court to contest!! Won’t this treat the country to an obvious judicial circus and what is the constitutional exit to this circus? I leave this question to constitutional experts to help us answer.
Let us go back to the practicality of the hypothesised re-run and look at the possible refereeing scenarios and open up the discourse to the nation and the international community. There are four possible scenarios I can think of the refereeing of the re-run. The first is the obvious one, where IEBC would have to pick its broken pieces and surmount courage to rebuild confidence in Kenyans that this time around all will be well. This will be a tough acid test ever for an electoral body to handle since independence. With reports awash in the mainstream media, print and electronic, social media and village discourse revealing a tainted credibility of the institution, this is obviously a daunting task to redeem itself. Remember, this is also not the first time for the struggle for an independent electoral body. The process started a long time in this country and in the struggle we thought we were finally there when the institution acquired a new brand from an electoral commission to an Independent Electoral and Boundaries Commission (IEBC). Despite the branding and serious capacity strengthening, how they conducted the elections is still fresh in our minds. While many of the election observers, local and international, gave IEBC a clean bill of health, it is obvious that serious gaps exist just like in any system perfection is an ideal. This is one of the reasons that the results they announced for various seats, including the presidency have led some to court to seek for justice, which is a constitutional right for Kenyans.
The second available scenario, which I see more palatable in refereeing the hypothetical rerun would be for the two sides, Jubilee Party and the National Super Alliance (NASA) to have a honest and transparent dialogue on the best fit refereeing scenario for the re-run. As an uninvited consultant, I would suggest a win-win re-run refereeing scenario where Jubilee and NASA will agree on a 50:50 arrangement of the team that will oversee the re-run akin to the Inter Party Parliamentary Group (IPPG) of yesteryears, with one representation from IEBC for a casting vote in case they will have a stalemate in making decisions during the process. This way, I think all will be winners and this will ensure their supports satisfaction and hopefully place the country on a smooth transition devoid of the current wish wash and stomach rumbling scenario, which is not good for economic growth.
The third, ugly and unlikely scenario according to me is to involve within the plausibility of our legal and international treaties framework, the Africa Union. This is a kin to looking for a neutral arbiter to help us run a successful re-run under the current peaceful but silently boiling scenario. I say this is ugly because the Constitution 2010 is clear to whom the sovereign power of Kenya belongs to. Hence inviting the AU to mediate in this is akin to surrendering our sovereign power to an external force. However, if there is a way to do it without losing our sovereignty or if it is the only available options for the sake of a peaceful and prosperous Kenya, so be it. I would think and am convinced so, many Kenyans are for peace and believe me you quite a number of Kenyans have been praying day and night for this presidential contestation nightmare to end so that we can wake up to the beautiful and peace Kenya that we have ever known.
The final and uglier scenario and possible the worse than its immediate predecessor, is involving the European Union in the refereeing the hypothesized re-run. Why do I think it’s the ugliest? It is one thing to lose face and trust in our electioneering institution regionally and it is another thing to do so internationally. That is why when Raila and Kibaki disagreed
in 2007, Dr. Kofi Anaan, one of our own African child was seconded to mediate. We lost glory as a country but we managed to save face of the region as having capacity to handle its problems internally. My wish and prayer is for the country to handle this internally if it happens but if worse comes to worst why loose a country and yet the international community can help. In Africa, it is only a fool who would be given a chance to choose what they want for them to be rich than their neighbour who has several cows, to only choose the death of his/her neighbours cows. I hope Kenyans will be wiser Africans to choose peace over other considerations no matter what the legal framework says for laws are made by people and in some quarters the law is something (you know) that I don’t want to mention for fear of my in laws. God bless you and God Bless Kenya.