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Post-election disputes and what they say about our democracy

By Rogers Busena | Published Fri, May 19th 2017 at 00:00, Updated May 18th 2017 at 21:54 GMT +3

As August draws near and the fiasco that followed after various political parties' elections boards and appeals tribunals mishandled appeals, the disputes that followed are still fresh in voters' memories. There is no doubt that the neanderthal manner in which political parties' conducted their nominations has not only cast doubt on the reliability of Kenya's primary electoral system, but will have serious ramifications for the grand finale.

The manner in which political parties nominees were picked varies by party and region, but nobody has come out to dispute the fact that several nominations suffered the lack of safeguards to root out the appearance of partisanship. This doubt is bad for democracy and partly explains why as a country, we can't avoid post-election disputes.

Kenyan politics may be on the verge of a profound swing, courtesy of an event that looks so trivial that not many people seem to have taken notice. Take the case of Murang'a County where Kigumo MP Jamleck Kamau sought to stop the Jubilee Party from presenting Murang'a Governor Mwangi Wa Iria as its nominee for the seat in the August elections.

Complaint number 250 of 2017 filed by the MP before the Political Parties Dispute Tribunal (PPDT) at the Milimani Law Courts alleges Wa Iria committed 'serious' election malpractices during the nomination exercise that was held on April 25 and 26 and accuses Jubilee of allowing "prohibited persons affiliated to it to vote more than once".

As a general rule, I plead objectivity in this case and will not delve into the merits or demerits of the case. That will be up to the tribunal to decide. But this doesn't take away my right to dissent or an opinion.

Disruptive petitions

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My belief, which should not count for anything in this case, however is that petitions, in general, are disruptive to a representative democracy. They can be abused as evidenced by civil society activist and serial petitioner Okiya Omtatah's numerous petitions.

But the real danger is not in the process itself. It is the prospect of wielding petitions as a hammer to stifle good, forward-looking governance.

The fact that Makueni Governor Kivutha Kibwana could barely rule or preside over functions in his county for close to four years is a clear indicator that overuse and abuse of petitions has robbed validly elected officials of needed flexibility to govern, especially when petitions, or threats of petitions, are used to stifle progress.

Besides allegations of rigging, bribery and violence, which have become lingo in our politics, Kamau's most devastating allegation is that Jubilee used the wrong register in the nominations exercise.

In his petition, he states that Jubilee, which is listed as the first respondent has a total of 119,836 duly, registered party members in Murang'a County. Of this, he says he got 118,274 of the total votes cast, while Wa Iria had 203,941.The third candidate, Dr Moses Ndung'u got 6,210 votes bringing the total number of votes cast to 328,425. In other words, other people other than the bona fide Jubilee Party members participated in the party primaries.

Wa Iria, in his response states that PPDT should not hear the appeal because the internal party conflict resolution mechanisms were not exhausted because there was no valid appeal before Jubilee Party's Appeals Tribunal.

He states that Mr Kamau did not prosecute the appeal and even after it was dismissed by JPAT for among other reasons, non- attendance, he did not attempt to reinstate it for hearing.That, according to his submission means that the party's internal dispute mechanism was not exhausted hence the PPAT should decline jurisdiction to hear the appeal.

It is hard to say how the tribunal will rule on the Murang'a petition. They can either confirm the Kigumo MP's allegations and cancel the nominations results or conclude that the petitioners have not met their burden of demonstrating that there was an error in the nominations that requires the Judiciary to intercede.

The decision may go either way, but the game-changer scenario happens if the tribunal confirms Kamau's assertions. The implications for the upcoming August 8 General Election could be far reaching. Any acknowledgement that Jubilee used a fake register for the exercise will not only open doors to thousands of other aggrieved contestants who may wish to appeal the nominations outcome on similar grounds, but may also destabilise Jubilee's rivals in the Opposition.

It may precipitate a free-for-all that may usher in another round of mini-elections and risk interfering with the Independent Electoral and Boundaries Commission set deadlines and calendar.

The Political Parties Dispute Tribunal has not nullified the nomination of an individual on the grounds of lists used during nominations, will the Murang'a gubernatorial primaries be the first one?

Mr Busena is a student at the Kenya School of [email protected]

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