Why Maraga is getting carried away in the battle for headlines

Former Chief Justice David Maraga. [File, Standard]

We have finally hit silly season. As elections draw closer, we are being inundated with a cacophony of political noise from everywhere. Some noises are clothed in constitutional and legal garb, but still expose partisan political undergarments, as politicos outcompete each other for headlines and soundbites.

Silly season notwithstanding, I do not expect reckless and irresponsible statements from the more serious and sober among the political operatives. But clearly, when it comes to seeking attention, differences across the intellectual spectrum diminish.

I was, however, still surprised that the well-respected Chief Justice Emeritus David Maraga, who generally tends to be quite rational, would make the reckless and ill-informed proposal that we should do away with the National Tally Centre for the presidential election. Flanked by no less than former Attorney General and Speaker of the National Assembly, my good friend Justin Muturi, and later supported by former LSK President “General” Nelson Havi, he even argued that the IEBC has no business verifying and tallying the presidential results.

Among other reasons, his argument was that “the tally centre and these responsibilities were not in the Constitution”. Let us for a moment assume he was right on the constitutional point. Purely from a practical perspective, where would the aggregation of the results of presidential elections from the 290 constituencies occur? Where would the determination of 25 per cent and 50 per cent plus one compliance occur? Who would undertake it? Who would determine between contending Form 34As and Bs?

I hear some Kenyans arguing that “the people” and “the media” would undertake this role “the way America does it" and I cry for this beloved country. Fortunately, the Constitution is a lot more insightful than the CJ Emeritus and his sympathisers. While the Constitution does not specifically talk of a National Tally Centre, Article 138(3)c obliges the IEBC to “tally and verify the count and declare the result” of the presidential election.

Obviously, the IEBC could undertake this constitutionally mandated verification and tallying exercise in its offices at Anniversary Towers. The movement to a National Tally Centre was a recognition of the need to have a transparent and accessible venue to accommodate the candidates, scores of their scores and party agents, hundreds of observers and media in one centre for this important national exercise. It was therefore agreed as far back as 2011 that we would have an open venue called the National Tally Centre, an idea pushed vigorously by civil society.

The Elections Act thereby provided not just for the IEBC to decide on the venue but to gazette such a venue. Granted, the National Tally Centre has been the avenue for much political contestation, and many uninformed Kenyans assume that is where “uchaguzi unaibiwo”. Truth be told, there is very little the IEBC can do to adjust results once they come from constituencies.  My classmate Maina Kiai settled that long ago. Many stories, including such “hot air” ones like “Jose Camargo”, are at best entertaining.

As Justice Smokin Wanjala famously asked, even assuming the ICT infrastructure has challenges, since all the forms on which the elections are declared are physical forms delivered to the IEBC by returning officers, was there any one of the 290 Form 34As delivered to IEBC that was different from what was signed in the constituencies? Not even one could be found. The IEBC merely collated what returning officers delivered. Hence the dismissal of the petition.

I worry that if this kind of talk is encouraged, it will inspire goonery against legitimate institutions that are necessary for the election. Having said that, IEBC has a lot of work to do to gain the credibility necessary to undertake a contentious election. Its failures so far, including a less-than-open procurement of critical election infrastructure, are not helpful. In the future, all sensitive processes, including recruitment of critical personnel, must be seen to be open, fair and meritorious. The commission must have a vibrant communication strategy that keeps all key constituencies informed of its key activities.

But political actors must also tone down their messaging. Political operatives that we look up to, including CJ Emeritus Maraga, must refuse to sacrifice their statesmanship and sobriety on the altar of cheap populism.

The writer is an advocate of the High Court