The country is charged. We are consumed by political frenzy. Anything and everything being done, uttered and promised seem to have a political angle. It is an election year after all. We are a political nation. We breathe, eat and sleep politics, and we wallow in the same.
I doubt there is any other country where the people talk politics year-in-year-out. Whilst it would be deemed quite okay to discuss politics in an election year or a year preceding an election, ours offers a different cocktail each day.
Do parties comprehend their role in promoting democracy? The Constitution states that a party shall have a national character, respect and promote gender equality and equity and practice democracy through regular, fair and free elections within the party. No, I am not advancing the gender agenda. I will do that at a later date.
Back to my topic of the day: is the setting of parallel tallying centres by the various political parties a way of dissuading any mischief? And is it proper and within the law?
In truth, there is no law banning or prohibiting the same. But mark you, the results as declared by IEBC are the only ones that are legally cognizant and binding. The question thus arises whether it is in order for political parties and candidates to go ahead and engage in a wild goose chase of having their own independent tallying centres.
Mutakha Kangu, a devolution and constitutional expert, says that it would be preposterous to expect a presidential contender or voters not to have interest in the electoral process.
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"Any contender worth his salt must have apt interest in the electoral process as how then can he dispute a process which he is unaware? Will he or she be expected to challenge an outcome with no alternative facts or sufficient proof?"
The Law states that the burden of proof lies on the party that alleges. In the case of an "election petition" to challenge the electoral results, the burden of proof shall generally be borne by the party challenging either the outcome or the misconduct of the other. It is thus digestible why political parties could seek to have their own independent tallying centres.
Nonetheless, vicious propaganda, mudslinging campaigns and negative politicking have sought to impede national unity, development and stability. The chances of slipping into tribal divisions, chaos and disorder are much higher. Unverifiable vote-tallying could be the catalyst that pushes the country to the brink. We all remember the 2007/2008 post-election violence too well. The same was precipitated by allegations of electoral malpractice and rigging which culminated in flawed electoral results.
The mandate of the Independent Electoral and Boundaries Commission is clearly envisaged in the Constitution of Kenya, 2010. This is the sole body with the mandate of conducting and supervising referenda and elections. What’s more, IEBC has not just the mandate, but also the wherewithal to conduct and oversee the elections.
The commission must at all times ensure that the process is transparent, credible, free and fair. Among other duties, the commission has the constitutional responsibility to ensure that the results from the polling stations are openly and accurately collated and promptly announced by the Returning Officer. Ideally, parties in the democratic process must at all times encourage political participation, balance and inclusivity through accommodation of diverse interests.
That hardly happens. In fact, political parties often propagate selfish interests devoid of national interests. When a political party whether affiliated with the Government or the Opposition seeks to advance divisive or tribal politics with interests of a person rather than the public then it is deemed to have failed in its mandate.
All parties are required to not only promote the objects and principles of the Constitution but also to subscribe to and observe the code of conduct for political parties. The rule of law reigns supreme.
Ms Nyang’ai is an Advocate of he High Court and a Corporate Governance Specialist [email protected]