We must maintain peace on the week repeat poll is scheduled

This week will be a defining moment for Kenya. The impasse over the repeat presidential election is still unresolved, even as the electoral agency puts final touches for polling day on Thursday. Part of the uncertainty is because this will be the first time a presidential poll will be repeated — the August 8 poll was invalidated by the Supreme Court after it agreed with the petitioners that the illegalities and irregularities committed by the IEBC negated the spirit of fairness in that election.

The apprehension ahead of this week has been aggravated by the main opposition party’s call for voters to boycott the repeat presidential elections on account of the IEBC’s own admission that it has been unable to reform itself to effectively conduct a free and credible election. With the National Super Alliance’s (NASA) insistence that elections will not be held, even though legal provisions to stop it may be difficult to summon, the uncertainty is suppressing business activity and strangling vital economic sectors.

Already President Uhuru Kenyatta, the flagbearer of the Jubilee Party, has warned that the State will pull out all stops to ensure those who want to vote are unhindered and unmolested. This has come amid claims by the Opposition that their demonstrations —  very often violent —  to force reforms within the Independent Electoral and Boundaries Commission (IEBC) has been met with excessive force by the police. Clearly NASA’s thinly-veiled threat to stop the vote or suppress voter turnout and Jubilee Party’s parliamentary amendments of electoral laws to introduce provisions that will give the incumbent undue advantage have prepared the ground for conflict.

Because the stalemate has morphed into a political problem, it is difficult to see a way out outside provisions of the law.

The law only envisages a scenario where the constitutional and legal provisions are complied with — the Supreme Court ruling of September 1 was explicit that the repeat presidential elections must be held by November 1. Anything else would be outside the law. Therefore, while the action of voting on August 26 carries the force of law, stopping the elections does not. To legitimise its actions, NASA would require a court order to stop the poll, but this does not appear probable or even possible.

And this is why we ask that President Uhuru Kenyatta and Mr Odinga dialogue and agree on the way forward. If there is no way out of the impasse as things stand now, then elections would have to be held in three days’ time. But because there is little to demonstrate that the IEBC has reformed itself, the results would be open to legal challenge.

If elections go ahead as is looking increasingly likely, then the Constitution is unequivocal; the right of whether or not to vote is protected by the law and must be respected by all Kenyans irrespective of political affiliation or persuasion. Therefore, it will be incumbent upon all Kenyans to ensure these rights are respected. 

Given the prevailing circumstances, the Opposition’s call for peaceful demonstration on voting day is ill advised. This is because although picketing is allowed by law, the violence that inevitably follows such demonstrations could deny others their legitimate right to vote.  Furthermore, such picketing would exacerbate the tensions, lighting the fuse in an already volatile situation.

The political positions of the protagonists aside, we must begin to have candid conversations about actions by State and non-state actors that contributed to the current impasse. We must discuss the role and character of our independent institutions and establish their contribution to a free and fair electoral process. 

However, because of the statutory timelines laid out under the Constitution may not provide adequate opportunities for structured dialogue, we may have to settle for complying with the narrow provisions of the law to conclude the electoral process this week.