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Opinion should not distract our focus on August 9 polls

By Kamotho Waiganjo | July 31st 2021


There was considerable excitement in the corridors of power last week after the African Court on Human and People’s rights issued an advisory opinion on the State Parties’ right to postpone elections arising from the Covid-19 pandemic.

In the opinion, issued at the request of the Pan African Lawyers Union, the African court affirmed that postponement of elections during the pandemic or similar emergency was legitimate within the African Union Treaty.

However, the court decreed that certain conditions needed to be fulfilled to make the postponement legal and legitimate. Firstly, postponement should be a last resort. State parties resorting to that option should be clear that there did not exist less disruptive means of curtailing people’s political and electoral freedoms other than postponing elections.  

Secondly, it needed to be provided for in law. If no law existed, the passage of such a law would require consensus from a diversity of stakeholders including all political actors and civil society on the need to postpone elections as a result of the pandemic. Finally, it needed to be proportionate. Consequently, its scope and duration needed to be legitimately related to the pandemic and should not be used to achieve other objectives.

The excitement over the opinion arises because up to now there have been whispers, especially after the High Court’s stoppage of the BBI process, that there may be need to postpone the 2022 elections. It was clear after the ruling that many of the permutations particularly on the presidential elections were based on the assumption of the passage of the BBI.

Among other things, the expansion the Executive was the principal means by which coalition building between the principal political actors would occur. With the matter coming for decision by the Court of Appeal in August, with a possible review at the Supreme Court, it is clear that even if these superior courts allowed BBI to continue, there would be little time to operationalise some key provisions in time for the elections.

Key among these is the additional constituencies, essential in a new hybrid system where part of the Executive will be appointed by Parliament and will form part of the Legislature.

Failure to operationalise these amendments would severely complicate political arrangements for the polls for many political actors. For a BBI promoter, the ideal world would involve a postponement of the elections to allow for operationalisation of these key amendments.

It would however be politically suicidal to connect any proposal for postponement with the BBI. Consequently, the window opened by the African Court decision becomes a welcome avenue through which this end can be legitimately achieved.

Anyone considering postponing the elections must however recognise two challenges. One is constitutional. Article 255 requires a referendum for any amendment of the Constitution that extends the term of the president, which is what a postponement of elections would do.

Consequently, any law passed by Parliament postponing the elections would easily be declared unconstitutional.

The other challenge is social-political. In Kenya’s 58 years as a democracy, we have held regular elections every five years, even during Kanu’s tumultuous years.

The promise of a renewal of leadership every five years, even when such renewal is a myth, is part of the guarantor of our stability. If Kenyans were to believe that they are stuck with a leadership which conspires with other institutions to extend its term, there can be no guarantee of continued stability.

There are enough examples globally of the impact of such attempts. My counsel, for what it’s worth, would be to do all that is possible to hold the August 9th, 2022 elections. Any machinations to the contrary is an invitation to anarchy.

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