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ELECTION 2022

200 days to the next president: Why actors must play by the rules

POLITICS
By Special Correspondent | Jan 9th 2022 | 11 min read

President Uhuru Kenyatta takes oath of office as President of the Republic of Kenya for the second term, at Kasarani Stadium. [File]

In just about 200 days, President Uhuru Kenyatta is expected to hand over the instruments of power to Kenya’s fifth president. The lead up to the succession parade and its activities is proving a high stakes game. It is informed with a rich galaxy of both formal and informal players, some with axes to grind, while others are only carrying out their duty.

At the head of this starry mix is President Kenyatta himself. He is trailed by a cocktail of State officers with a motley of legal, and even constitutional roles to play. The succession affair is at once a test of stability of the constitutional order in Kenya and a test of the fidelity of various individual offices and the personalities in them to the Constitution and rule of law. 

Deputy President William Ruto has laughed off what he calls wishful thoughts by sections of informal government to deny him ascending to the Office of President, should he be elected. Reports that are, however, not sufficiently authenticated, but plausible all the same, have circulated in social media. They show Cotu Secretary General Francis Atwoli suggesting that “Ruto will not be allowed to become president” after the August 9 General Election. 

The authority to ascend to the Office of the President derives directly from the Constitution of Kenya 2010, and sundry attendant laws. Once a presidential candidate is formally confirmed and declared validly elected, the person is expected to take the oath of office and ascend to power 14 days after declaration of the results.

In the event that the election is contested, it is arbitrated in the Supreme Court. If the court finds the person validly elected, the inauguration goes on. It is difficult to see where and how other parties – and especially non-state parties – could come in, to derail the inauguration, as has seemed to be suggested by Mr Atwoli.

That notwithstanding, it is still possible that there will always be varied desires for a specific outcome, that could be different from what comes from the Independent Electoral and Boundaries Commission (IEBC). The possibility exists, therefore, that the electoral process could be manipulated to lead to an extra-legal outcome, in such a case. This is where the rigour of the Constitution, the law generally is placed on the weighing scales. 

When extra-legal interventions derail the inauguration of the person validly elected, they defeat and frustrate not just that person. They overthrow the will of the electorate and the law. It is because of this that IEBC is mandated with carrying out an election that is free, simple and verifiable. 

Today, January 9, is exactly seven months from the polling day. Even more significant, in exactly three months, party primaries must be done with. Kenya is literally on the homestretch to the August poll. The official campaign period begins on May 30 and ends on August 7. 

IEBC is walking the tight rope and racing against time. This late in the day, it is opening up mass voter registration again, for a one-month-period, from 17 January to 17 February. It is a thankless assignment that shall flow into cleaning up of the registers and availing them to voters for inspection. In the past, there have been awkward glitches by the electoral authority.

During the controversial December 27, 2007 presidential poll, Raila Odinga’s name was missing from the voters’ register at Kibera Primary School, where he had registered. This was quite curious, seeing that he was a presidential candidate. The candidacy was predicated, among other things, upon him being a registered voter. The glitch was a curtain raiser for worse things to follow.

It is of the essence that IEBC does not repeat the kind of mistakes the Electoral Commission of Kenya (ECK) made under its disgraced chair, the late Samuel Kivuitu and his team. Equally significant is the need for IEBC to demonstrate that it has taken lessons from its own mistakes that saw the Supreme Court nullify the 2017 presidential election, on account of massive illegalities and irregularities.

A checklist based on the National Super Alliance (NASA)’s 11 irreducible minimums of that year would help a great deal. 

There is meanwhile a lot to worry about regarding IEBC’s preparedness. Apart from unending litigation against the electoral body, majority commissioners are greenhorns only appointed last year. They are still learning to work the strands of the rope. It will be of great public interest to see how well they fit in the delicate role ahead.

The commission, moreover, has demonstrated ineptitude in its public communications abilities and has recently been declared the worst state communicator. To a great extent, its public communications and relations practice is a firefighting affair. Little deliberate and planned communication comes from IEBC, an entity that tends to behave like a secret society rather than a public commission. It must style up in the next few weeks, or widen the credibility gap it has erected in the public mind.  

IEBC’s opaqueness has lumbered it with procurement challenges that have made it difficult to move. While the law on procurement is crystalline, the commission has had a knack for shortcuts, bending the rules and cutting corners. In a country that is increasingly litigious, IEBC makes one step forwards, only to find itself drawn back three steps. Embracing a policy of wider transparency will help the commission to move faster and to conduct a credible election whose results both the winners and losers could accept without dregs of doubt.

Kenyans are awake to the fact that nearly five years after the Supreme Court ordered that IEBC should open the ICT servers that masked information on the August 8, 2017 presidential poll. The servers have never been opened. Regardless of whatever sanctity makes it sacrilege for the servers to be opened, IEBC moves to the next poll with a bloated slur on its reputation.

It is not clear how the server challenge is being resolved, together with such other attendant concerns as the sanctity of electronic voter registers, conducting of voter education and worse of all – whether chair Wafula Chebukati will still be the boss on August 9.  

The IEBC’s critical office of the Executive Director and CEO has remained vacant for years and how this will affect the conduct of the poll is a matter of grave public concern. So, too, is the need for assurance of the integrity of the ICT system. In the past,  it has been planted in the public mind that the commission’s ICT has been invaded by interlopers with vested interests, and that they have planted into it algorithms that have driven some of the poll results to predetermined destinations. A poor public communications entity at the commission has left these questions yawning. They could return to haunt the commission and the country this year. 

Away from IEBC, security concerns abound. Kenya’s general elections have become synonymous with violence. The peaceful election is the exception rather than the rule. Interior CS Fred Matiang’i and his Principal Secretary Karanja Kibicho, have time and again assured Kenyans that their country’s public security apparatus are on the qui vive.

They have vowed “to crush” any violence that should attempt to show up its head anywhere in the country in this electoral season. And that, exactly, is a part of the problem. Security studies have often suggested that the best way to enhance public security is by building public confidence about things likely to trigger and drive violence. With regard to elections, the done things are not promises of crushing people, but rather removing doubt and fear about the electoral process. When people see that the processes are free, just and fair, the likelihood of gravitating into situations that disturb the peace is diminished.  

The ball returns, again, to the IEBC quarter and the need for an election that is above board. IEBC has been slow in pronouncing itself on declarations that plant doubt in voters’ minds, such as those that have been attributed to Atwoli.

It does not help at all when Ruto takes things a step further by saying, “We will reject the imposition of a leader who is forced upon us by some people.” The reality of such imposition, if it happens, and its rejection if it follows, could only be after the poll results are announced. In other words, the DP could be hinting about possible rejection of the election results, if the perception will be that the presidential poll has been stolen. IEBC needs to assure Kenyans and the world this early that its election has not the slightest possibility of being stolen.  

For their part, however, Matiang’i,  Kibicho and Inspector General of Police Hilary Mutyambai, hold the second key to the double-lock of security. How they approach internal security will to a very great measure determine whether the elections stay on the peaceful course, or whether they orbit towards violence.

So far, they have left no doubt in the public mind that they are not averse to leaning on one side of the political divide, having publicly endorsed Raila, who has also implicitly received the presidential nod. Having shown their hand fairly clearly, their management of official use of violence by the state will be critical to a peaceful electoral season.  

Moreover, it is also not clear what strand the rejection of  “an imposed leader” UDA would take, if in their perception a leader has been imposed. Would UDA go to court, or would it, like NASA, engage Kenyans in street mayhem and the swearing-in of its presidential candidate extra-legally, as the people’s president, or even the president of Kenya? The matter of the Raila swearing-in of himself in January 2018 was smothered over through the March 9 Handshake. It was, therefore, never formally brought to closure by institutions that should manage such conflicts with the law. A precedent has been set. Put together with the 2007/08 experience, it does not bode well for the country. The most assured remedy for now is an election that is completely above board. Persons like Atwoli should be discouraged from flaunting impunity ahead of the elections. Also to be discouraged are all others who have flaunted what they have called “the system” and “the deep State.” On the same bandwagon are bloggers and Twitter trolls, some who also pass themselves off as wise men in the lap of the state strategic advisory. Provocative Twitter posts that could incite ethnic animosities and flare ups are common. They are particularly bad when they come from persons who claim to be close to the centre of state power.  

Going hand-in-glove with the Matiang’i-Kibicho-Mutyambai axis is the National Intelligence Services (NIS), under the stewardship of Maj-Gen Philip Kamweru.

In the past, intelligence was accused of abuse of office and human rights, especially after the 2007 poll. The role of this crucial State unit is supposed to be politically neutral surveillance. They are harbingers in shadowing activities of public interest and letting the Executive know crucial things it should know – no matter how unpleasant they may be.

This does not include participating in acts that parallel the dreaded GESTAPO of the World War II era. Their role is in essence, therefore, to plug holes and preempt insecurity by placing other relevant security apparatus on the trail of reprobates. Their role is not about abduction, torture extra-judicial execution and disappearances of persons, as they have been accused of in the past. If they should play their role well, they will contribute significantly to a credible and peaceful election.  

In the past, state intelligence gave very accurate reports to the Executive, but they were not listened to. The Waki Report on the post-election violence of 2007/8 is clear that intelligence briefed the Executive about the possibility of President Kibaki losing the election and the ensuing violence.

Their reports were, however, brushed aside. Equally significant, NIS gave accurate predictions on the Building Bridges Initiative (BBI) as it also did of the failed 2005 constitutional referendum, but they were not listened to. The Executive will do well to listen to impartial reports from NIS, especially if they should pertain to outcomes of potential underhand electoral activities by no matter which side.  

The Judiciary, for its part, has its job well cut out. That there will be petitions against the results almost at all levels goes without saying. A multi-State agency that was fashioned last year to monitor and manage election preparedness swiftly threw the Judiciary into trouble.

Chief Justice Martha Koome unconvincingly attempted to justify her participation in the agency, by invoking her role as the head of the Judiciary and the need for the Judiciary to work in concert with other State organs and agencies. The question of whether the Judiciary could play no-matter-what infinitesimal role in a process whose outcomes are likely to end up before the same Judiciary as contestation for adjudication must boggle the mind. The Judiciary will most probably do very well to recuse itself from any such forums, as part of confidence-building towards the electoral process and the Uhuru succession.  

Meanwhile, the Head of Public Service Joseph Kinyua is expected to lead the Assumption of Office committee for the fifth president. This is an especially crucial role in a transitional season like the coming one.

In 2002, the Mwai Kibaki Assumption of Office was patently chaotic. The National Rainbow Coalition (NARC) politicos were overbearing to the extent that they did not allow the Dr Sally Kosgey team to manage a dignified assumption. It was a riotous assembly that resembled a chaotic marketplace, with crude objects being pelted at dignified persons whom the hugely partisan throngs did not like.

Uganda’s President Yoweri Museveni cautioned Kenyans that they were giving a bad example to the world. Hopefully, this will not happen again. 

Thrown into the mix are the invisible hands of powerful foreign countries, interested in Kenya and in regional geopolitics, for commercial, security and militaristic reasons. They will be watching the events of the next few months with a keen eye, and perhaps even sneaking in a sleight of hand.

Local and international commercial interests as usual back now this side, then the other – sometimes two or more sides concurrently, their sights cast on future rewards. The military, too, keeps a keen eye, watching to see who their next Commander-in-Chief is going to be.

However, in the end, the onus is on the departing incumbent. President Kenyatta is the one person who must set the pace for a peaceful and credible transition. To say he has a dog in the fight is nothing new. He must, regardless, play according to the rules, no matter whose dog wins.

When President Moi showed his hand too openly in 2002, he did not succeed in placing Uhuru in State House.

But, in 2013, President Kibaki succeeded where Moi failed, because Kibaki was subtler and methodic.

Uhuru could borrow the succession manual from Kibaki.

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