The impact of presidential petitions

NASA leader Raila Odinga and principal Kaonzo Musyoka carrying presidential election petition documents to the Supreme Court

Among the enjoyable things about elections is watching the production of unexpected stars becoming sensational hits. In 2013, Mutahi Ngunyi talked of “the tyranny of numbers” deciding election outcome and his concept of “tyranny of numbers” entered Kenya’s political language. In 2017, the unexpected phenomenon was the “githeri" man, lining up to vote while eating his meal of beans and maize. His material wealth has since improved.

Ngunyi and githeri man, however, are side issues compared to contestations that accompany elections in the form of “PP”, protests and/or petitions. This happens regularly because Kenyans have seemingly developed expertise on both protests and petitions before, during, and after elections. Protests and petitions make good media copy.

In the 2007 elections, politicians ignored the court option, went to streets and produced the nusu mkate government that enabled the 2010 Constitution which changed Kenya’s governing structure. The Constitution created a Supreme Court to have original and final jurisdiction on presidential election disputes. The 2017 presidential election petition seemed to buttress what might become tradition and the impact on the Kenyan society and political culture is positively big. There are four impacts to consider.

Sociopolitical impact

So far, the petitions have had a lot of educative value to the general public on how to go about challenging particular outcomes. Kenya’s last two presidential elections, in 2013 and 2017, witnessed the two PP phenomena so much that they have become part of the new national normal.

Of the two, petitions are more attractive than protests in part because citizens can sit in their sitting rooms and get entertained without physically injuring anyone. Petitions also tend to make violent protests and “mass action” on the streets to be “old fashion” in a digital age

One of the outstanding aspects of the 2017 petition is the length to which the Supreme Court went to be transparent to the public and to the parties to the petition. It even had top judges from other African countries to observe how Kenya conducts its election petitions. It wanted to combat the political image that the judiciary was unreliable as an institution and that it was not a fair arbiter of disputes.

In part, this was because along the way in the election process, there was impression that the judiciary, due to decisions that raised eye-brows, bent to the wishes of particular political factions.

With one faction declaring it had little faith in the courts and would not accept an unfavorable decision, and given the Kenyan and “international” interest in its performance, Judicial Transparency became a necessity. The Supreme Court, therefore, did its best to accommodate demands from the parties and did not want accusations of being opaque.

Creating media stars

One of the outcomes of the 2013 and 2017 petitions was the creation of media stars and turning relatively unknown people into household names and assorted celebrities. The 2013 petition, filed by a relatively new NGO with Euro connections, AfriCOG, challenged the election of Uhuru Kenyatta. It also created media stars, among them being young Kethi Kilonzo, Ahmed Abdulnasir (nicknamed the Grand Mulah), and soft spoken Fred Ngatia.

The ability of petitions to make people household names became heavily pronounced in 2017. Political activist Maina Kiai became a legal reference term on the finality of votes counted and declared at the polling station. David Maraga stamped his authority on the judiciary as an accommodative and yet no nonsense Chief Justice.

Besides introducing the Maraga judicial robes, he found a way of accommodating religious beliefs to judicial demands by holding court at night with the entire country watching. Thereafter, holding court at night or maneuvering through religious challenges will not be a novelty.

The petition also gave opportunity for lawyers to display their legal wizardry. Since Mr Ngatia and the Grand Mullah were already established and did as expected, attention was to relative new-comers in media stardom.

Charles Kanjama managed to capture media attention by making himself a “friend” of the court before he was allowed to become a “friend.” The public, in TV-land, noticed his persistence even as Maraga forced him to sit down.

There was Otiende Amolo, helping eloquent James Orengo in asking the court to nullify Uhuru Kenyatta’s election on account of supposed IEBC failures. And Pheroze Nowrojee, seemingly capping up a long career, asserted that unknown people entered the IEBC computers and altered Forms 34As.

While unfamiliar faces like that of Lucy Kamboni and Issah Mansur filled the screen with logic, the performance of well known lawyers Paul Muite and PLO Lumumba rose above themselves with eloquence befitting their reputations. And Harrison Kinyanjui was not far behind arguing with passion about the validity of the election. Some lawyers, however, appear to have reduced their stature due to making questionable statements or appearing to be unsure.

Among the possible benefits of the emerging petition tradition is the reduction of possible violence in the name of protesting possible outcomes. With the positive handling of the petitions, the public is less likely to be provoked into senseless violence.

Subsequently, a culture of petitioning and avoiding turning to violence is being inculcated in the public mind such that politicians will increasingly find it difficult to “mobilise” rioters. In itself, this development is an enhancement of democratic practice in Kenya where petitions should always trump protests.

Mr Munene is professor of history and international relations at the USIU-Africa