Shylock's missed detail ruined his case; Kenya is also on same track

Charity Ruguru Karindi, 93, cast her ballot at a polling station in Gichugu, Kirinyanga County, during the August 2022 general election. [Andrew Simon, Standard]

Shylock failed to consider that flesh on a living person cannot come out without an ounce of blood. That is quite analogical to Kenya's political storms after every presidential election under the 2010 Constitution. A country cannot elect a president without sections of that country voting for his most adept competitor.

At the making of the 2010 Constitution, the country seemed to reorganise the job of president and gave it to the politician that gets the most votes at a presidential election. Few stakeholders thought about the reality that the candidate who emerges second at a presidential election may also be a most popular politician who cannot be wished away.

This gave us a constitution that has a major failing, politically speaking, which in my view, is the cause of ongoing political upheavals which have been emerging after every presidential election since 2013. That problem has been how the country treats the politician that comes second at the presidential election. According to our current supreme law, that politician goes home with nothing despite carrying the aspirations, dreams and hopes of millions of Kenyans that voted for him at the election.

Azimio leader Raila Odinga, for instance, has been going home with the hopes and aspirations of millions of people who have voted for him at three separate presidential elections. That is because the current Constitution does not envision a role for the candidate that emerges second.

During the March 4, 2013 presidential election, Raila under the Cord brigade garnered 5,340,546 votes which was 43.7 per cent of registered voters against Uhuru Kenyatta's 6,173, 433. He proceeded home with the hopes of over five million Kenyans. With nothing much to do under established formal structures, Raila surmounted pressure against the Jubilee administration complaining about this and that leading street demos that ended up disbanding the first team of electoral commissioners formed under Kenya's 2010 Constitution. That, in itself, revealed the power that a serious competitor at a presidential election commands.

In 2017, Raila under the NASA brigade garnered 6,822,812, 44.94 per cent of registered voters against Uhuru's 8,223,369. He once again proceeded home with the aspirations and hopes of nearly seven million Kenyans. The power he held then was seen clearly in his causing a unstable political environment in the country that initiated talk of secession.

There were street demos which culminated in a dramatic mock swearing ceremony for him as People's President. That swearing in to me was akin to Adonija brother to Solomon who declared himself king despite David the father having anointed Solomon. He was later to be executed by his bro Solomon when he demanded to be given Abishag a beautiful girl who had been brought to David to nurse him during his twilight years.

For Raila, this was to manifest through the support he got from an outgoing rather unpopular president.

As is known to all Kenyans, there was a political bromance signed between him and President Uhuru Kenyatta, which was an acknowledgement that a presidential candidate who emerges second commands a sizeable part of the country.

Uhuru Kenyatta with Raila Odinga at Harambee House, Nairobi. [File, Standard]

Today, the demonstrations being called by Raila are disrupting the normal course of business at a precarious time in the country. Any sober leader would be praying for some quiet space to reorganise the country's unstable economy.

The power to successfully call these demos is hidden in the millions of votes that Raila has been getting at every election that he has run. Today as he leads ongoing threats for mass action he has behind him 6,942,930 votes, according to IEBC at last year's election. Meaning, he has nearly seven million registered voters in the country that believe in him and millions of others that did not vote or are not registered.

Our supreme law, therefore, failed to recognise the realities of our politics which older democracies sorted out through practice, law and tradition. The United Kingdom, for instance, through tradition has across the centuries, had the leader of the party that emerges second in the number of seats at every parliamentary election become the leader of the official opposition. It is an automatic job that they assume immediately after the elected MPs have taken their seats in the House of Commons. The job comes with the dignity that goes into such an office, which included membership to the Privy Council - advisors to the monarch. The opposition leader also holds weekly consultations with the Prime Minister on matters of great national interest.

In the United States, whose presidential system we borrowed to a great extent while enacting our 2010 Constitution, a politician does not resign from their political office to run for president or vice president. Senators and governors that have run and missed the job have gone back to their political jobs. This practice benefits the country in the sense that it does not lose its political talent anyhow.

Politicians in the US also have one advantage that is borne of the law. The country holds each election separately and does not overburden itself with six elections in one day as is the case in Kenya. Once in a while, a presidential election can coincide with Senatorial or House of Representatives' but utmost care was taken to allow the country to hold at least one election at a time.

For instance, John McCain returned to the Senate as member for Arizona. That in my view is another idea worth borrowing as we consider amendments to our 2010 Constitution. This is, therefore, to say that our supreme law has made us behave like Shylock who missed the important fact that you cannot extract flesh on a living person without drawing some blood- he therefore lost the case. We must be careful not to lose by ignoring the realities in our politics that the politician who gunners millions of votes at a presidential election and emerges second holds the aspirations of a large constituency of the country and has power at his disposal- whichever way he chooses to use it affects our public life.

It is my considered view, the 2010 Constitution be amended to provide for the office of the leader of official opposition, a job to be taken up by the presidential candidate that emerges second at a presidential election while two jobs of minority at the Senate and National Assembly be set aside for the his/her running mate and a coalition leader whose party garnered the most seats.