Let parties create a framework to resolve contentious issues

To state that Raila Odinga’s formal withdrawal from the impending elections was a shocker is a gross understatement. While the former PM had stated on numerous occasions that “there would be no elections” not many people had expected him to formally withdraw, thus necessitating a recalibration of the elections. With the Justice John Mativo judgement on Wednesday, the legal impact of withdrawal has been altered. Of course the political consequences of the former PM’s withdrawal remain, the law notwithstanding.

My concern this week is however not this contested issue which I believe IEBC and the courts will resolve. What concerns me is that Kenyans have not really interrogated the reasons that NASA has given for withdrawal from a process required both by the Constitution and ordered by the Supreme Court. I have taken time to review the foundation of Raila’s withdrawal as contained in the statement of irreducible minimums communicated in various fora last month. I have also reviewed the IEBC reaction to NASA’s demands. The twelve irreducible minimums can be grouped into four broad areas.

The first is the ICT infrastructure and voting materials. On this issue, NASA requires fourteen administrative changes to the electronic transmission results processes including the location of servers, change of ballot printers, change of the ICT service providers and provision of access to critical components of the ICT data and systems. The majority of these requests have been accepted by IEBC. Reasons given for not adopting some demands range from time and contractual constraints and risks that may be exposed to the entire system if some of NASA’s requests are accepted.

The second set of demands relate to the process of announcement of results. These include the finality of the constituency results, results verification, the right of media to broadcast results, the use of station-specific pre-printed Forms 34A and 34B, the announcement of the number of voters at the end of polling, the role of monitors and the ban on texting of results. The bulk of these changes were adopted by the IEBC except the issues of pre-printed forms, announcement of numbers at the end of voting and the involvement of monitors in signing results which are regulated by law.

The third set of proposals revolve around IEBC Commissioners and staff. Here NASA wanted all returning officers changed and a process involving the political parties be introduced in the allocation of stations. Appointing new returning officers was deemed impossible by the Commission due to time constraints. On the stepping aside of named staff, the IEBC position is that in view of the Supreme Court judgment that no staff had been found individually complicit in the irregularities, they could not accede to the NASA request.

The final irreducible minimum, though not on the initial list is the passage of the electoral law amendments. Anyone who has seen the final version of the electoral laws will note that the majority are fairly benign and do not unduly favour one party. I set out these issues to show that the differences around which we are navigating the ongoing crisis, though important, are not insurmountable with continuous engagement between the actors.

For instance, on the issue of electoral laws, nothing stops the immediate application of those parts of the law that are necessary to make the election risk-free while putting off the application of others to the next elections.

On the irreducible minimums, there are other options to most of the remaining contested issues that would address NASA fears. The fact that the parties are unwilling or unable to resolve the issues points not to their complexity but to a political culture of “my way or the highway” particularly at the time of elections.

Honestly there are none of the “outstanding issues” that are so fundamental and unresolvable that we must postpone the elections and enter into legal penumbra unless they are resolved. To my mind, the earlier we sort out the elections the better, then our first agenda must be to create a framework for resolving the unstated underlying issues that will grow us into an even better union.

- The writer is an advocate of the High Court of Kenya