Electoral adjudication must not compromise Kenya's socio-economic stability

President Uhuru Kenyatta Photo:Courtesy

It is a sunny Monday afternoon, the November 27, 2017, and President Uhuru Kenyatta has just been sworn in for his second and final term in office.

A week earlier, on November 20, by a unanimous decision, the Supreme Court of Kenya, dismissed a petition challenging President Kenyatta’s victory as declared on October 30 by IEBC Chairman Wafula Chebukati.

Tens of thousands of people and regional leaders are in attendance at the Kasarani Sports Complex. In his inauguration speech, President Kenyatta rallies the country together and promises to deepen devolution and intergovernmental cooperation between the two levels of Government, to address challenges of inclusion and ensure respect as well as equality for all.

He vows to work with citizens and leadership, particularly from the four counties that did not participate in the October 26 fresh presidential election, to address perceived marginalisation and disenfranchisement, with the hope of empowering the youth.

This is just one of the legal and political scenarios that could ensue, following the declaration of President Kenyatta’s victory in the just concluded repeat election. Two other legal situations are also feasible.

ELECTION IS NULLIFIED

The first and most destabilising going by the developments of the last 60 days is that, it is possible that following the filing of a petition within seven days, the Supreme Court, invalidates the election after a fortnight of hearings, on similar grounds to those cited in their September 1, 2017 judgement.

If this were to happen, article 140(3) would be triggered yet again, meaning the next “fresh election” would happen on or before the January 27, 2018. This indeed is the most dreadful option to anyone who cares for the economic security and peace of our country. Based on the Sh700 billion economic losses of the last two months, as estimated by KEPSA, this scenario would be even more cataclysmic.

Our institutions, which have been stretched by the current political brinkmanship, will certainly not be able to withstand the shock of another invalidation. In fact, it is hard to imagine the current IEBC that struggled to conduct the repeat election will survive another round.

No doubt, this is a doomsday scenario that must be avoided at all costs. Given the inflexibility of our constitutional provisions regarding amendment, this scenario is likely to expose the country to grievous risk and a constitutional crisis that will be difficult to overcome in the next couple of years.

WORST CASE SCENARIO

The reality is that the manifestation of this scenario will also halt the country’s upward economic trajectory, while undermining Kenya’s place as an attractive destination for direct foreign investment on the continent.

In fact, the prospects of realising Vision 2030 will dramatically reduce as will the commitment towards the attainment of the Sustainable Development Goals. With the government collecting less taxes due to a shortfall in production and slowdown in general economic activity, the amount of sharable revenue transferred to county governments will equally reduce, jeopardising the important catalytic social developments that were beginning to be evident in various counties.

A more sanguine scenario however is that come November 6, no petition challenging the presidential election is lodged.

In this event, President Kenyatta is sworn into office on November 14, commencing his second term on a clarion call for national unity and healing.

But even such a positive end to this acrimonious electoral cycle will not necessarily engender trust or stability if the other major political actor in the game continues to pursue what has become its apparent dominant strategy in the run-up to this election; sabotage.

If based on the idea that the National Resistance Movement, will be a destabilising force that will use boycotts, protests and other forms of activism (and perhaps even violence) to force reforms or even rupture the state, how will they behave given these possibilities? As exemplified by the so-called ‘We the People’ Civil Society group, whose proposal is the formation of a transitional government to organise ‘credible’ elections in another one year, there will be many other attempts to seek creative solutions outside the constitutional order. These must be firmly resisted.

WILL THE UNITY HOLD?

No matter which scenario plays out, it is clear the fractious elections have challenged our collective coexistence as a country. It is time to unleash Kenya’s Ubuntu spirit.

All key actors, in both the public and private spheres, must engage actively and concertedly, within the framework of the law, in the search for a new and all-embracing national vision and narrative. Our institutions must enter the age of pragmatism, in pursuit of national interest and public good.