'Rigging of elections' in Kenya, Africa is not an objective reality

Absent of another shocker from the Courts or the IEBC, in two weeks we will undergo our five year General Election ritual. Like all Kenyan elections, the 2017 version has its own drama, though there’s nothing spectacularly new, the players being permutations of the same ones we have interacted with over the last five elections. There is however a false but popular narrative in some circles, including among respectable professionals, which predicts that there will be a bloodbath, similar to 2007, if the “elections are rigged.” This narrative has two major problems. On one hand, its champions never articulate who the determinant of whether elections have been rigged will be. Is it the citizenry collectively? Is it the losing aspirants? Is it the thousands of observers accredited by IEBC?

Unfortunately, in Kenya’s political terrain it is the losing aspirants who generally declare elections rigged. In the five elections we have held since 1992 there has only been one election, in 2002, which our leaders declared free of rigging. However, anyone who has read the parliamentary petitions following that election and who remembers how Narc dished nomination tickets to losers and issued “direct nominations” to dozens of its supremos knows there was nothing fair about the 2002 election. However, since our leaders declared them fair, they were fair.

I share these details to make the point that “rigging” in Kenya, and generally in Africa, is not an objective reality. Even where in 2013 most observers, including international ones, declared the election substantially free and fair, many supporters of ODM still believe the election was stolen. The NASA leadership states this regularly as fact. If we are to be violent as a consequence of rigging, should we not at least agree that there should be an objective criterion that determines whether there has in fact been rigging?

The other problem with the narrative is that many analysts pushing it erroneously assume because the level of contestation in 2017 is close to the 2007 levels, any problems with elections management in 2017 will produce similar reactions. Nothing could be further from the truth. Anyone who has read the Kriegler Report on the 2007 elections knows that in 2007 Kenyans were not just protesting an unfair election. The botched elections were just a trigger that catalysed fighting over the Kenyan state’s deep fissures. The war was not about election rigging per-se but a demand for the reconstruction of the Kenyan state to make it more just and inclusive. That is why immediately after 2007, Kenyans commenced the process of transforming the country to true nationhood. While we are far from reaching our destination, and have made many unnecessary and silly blunders, some significant changes have occurred since 2007 that make widespread agitation unlikely.

Truly independent

Firstly, on elections management, unlike 2007 when Kibaki refused to apply the IPPG process, the IEBC in 2017 is a result of a non-partisan appointment process and the commission cannot objectively be said to be an extension of Jubilee. Secondly, unlike 2007, the Judiciary which was an appendage of the Presidency is truly independent. No one can reasonably claim they will not seek a review by the Judiciary. Thirdly at a substantive level, Kenya is more inclusive than it was in 2007. While the Executive may still be dominated by persons emanating from Jubilee strongholds, other State organs created post 2010 from the Judiciary to the Constitutional Commissions reflect the true face of Kenya.

Finally and most crucially, devolution has commenced the process of fiscal equity. Unlike 2007, the Presidency is no longer the make or break that it was in 2007. With a more rule based resource allocation process, the loss of the Presidency is the not the end of the world. Every region now gets resources as a matter of right, not political privilege. So while we must demand that IEBC deliver to us a free and fair election, any challenges to the elections will most definitely be met by a more considered reaction unlike the mayhem of 2007. Is this wishful thinking? We will know in two weeks.

The writer is an advocate of the High Court of Kenya