Statesmanship key in review of electoral laws to protect poll

There is no doubt that reverberations of the Supreme Court decision on the presidential elections will be felt for long. Whether it will improve or destabilise our electoral process, it is too early to tell. For now, our focus must be on ensuring we hold the fresh election within constitutional timelines.

While that election must be in conformity with the Constitution, we must come to terms with certain realities. Preparing an election in 60 days in our environment will be a hard call, and the honest among us know some compromises will be inevitable. What is important is that these compromises are disclosed and negotiated openly with all concerned parties and that any compromises do not injure the credibility of the election.

A lot of pragmatic statesmanship and less sabre rattling and threats will therefore be required within both Jubilee and NASA in the next month. It is also critical to recognise that there are some reviews of the electoral laws that are inevitable if we are to protect our electoral process.

I can guarantee that if we do not make some of these changes, Kenya will be on permanent election cycles, with no corresponding benefit to the voter. While some changes can be effected after the fresh election, I believe there are some minor but critical changes necessary before the election. The changes I propose do not unduly benefit any of the political sides, though knowing Kenya they will be interpreted as such.

The first of those is technology. I am a firm believer in the power of technology to make our elections more efficient, credible and transparent. The Biometric Voter Registration process and the Electronic Voter Identification has no doubt revolutionalised our electoral process and reduced cases of ballot stuffing and voter fraud.

However, when it comes to electronic transmission, we must ask whether the risks associated with it do not far outweigh its supposed benefits. When introduced into the process electronic transmission was meant to enhance transparency. On the contrary, it has become the most opaque and most contested aspect of our election. It is open to manipulation. We must now ask whether in light of the Maina Kiai decision, it adds any value to the process since constituency results are final.

All Forms 34A are delivered by hand to the constituencies, tallied there and final results announced there. What value does electronic transmission add? Why hold the entire country at ransom with fears of hacking and other similar shenanigans when the final results are already announced? Just delete this process from the law!

Noncompliance

The other issue is the question of Section 83 of the Elections Act. That section provides that an election can be nullified if there is noncompliance with constitutional principles or that the noncompliance affected the results of the election. Consequently, all that one needs to invalidate an election is to show that there is noncompliance with constitutional principles; and one must remember that by their nature constitutional principles have very wide and subjective interpretation.

Under the current law, whether the noncompliance has an impact on the election results is immaterial. The enormity of the noncompliance is also immaterial.

We must agree that elections are not exercises in exactitude and perfection. There will be irregularities that can then be said to have violated constitutional principles. Indeed some may even be deliberately contrived as this section provides incentives for sabotage. To my mind, unless there is willful noncompliance so as to impact election results, any other irregularities may lead to punishment of the offenders but should not be the basis of nullifying elections.

Unless we change the law to make it mandatory for there to be a nexus between gross noncompliance and results, I can assure every politician that we shall have 1,835 successful petitions in the next elections. That may be exciting for those who will lose the elections but woe to them when political fortunes change and they need an assured win. It is time for all reasonable politicians to stand up and be counted and make these critical changes.

- The writer is an advocate of the High Court of Kenya