Explore other options of solving presidential election disputes

Recounting of ballot papers at Milimani Law Courts, August 31, 2022. [Collins Kweyu, Standard]

Kenya must explore nonviolent approaches to post-election presidential grievances to augment the judicial approach of the Supreme Court of Kenya (SCOK).

Thirteen years after promulgation of the Constitution, we are sliding back to violent methods of dealing with post-election grievances vended as anti-government protests in which lives and property are destroyed. The experiences of the 2007 post-election violence forced Kenya to unite political forces and craft a law that would ensure inclusivity, expanded rights and freedoms, as well as a panacea for post-election skirmishes.

The crafters of our Constitution deliberately established SCOK to deal with presidential grievances instead of the second runners-up calling citizens to the streets where lives and property are at stake. Does this intended Judicial process hold 13 years later? I think not. Let us trace where the rain started beating us.

After the 2013 general election, Raila Odinga and civil society went to the SCOK to petition against the Independent Electoral and Boundaries Commission (IEBC), requesting that the 2013 presidential election be declared invalid.

Under the presidency of Chief Justice (CJ) Willy Mutunga, a civil society member and human rights activist, the Supreme Court ruled that "The elections were indeed conducted in compliance with the Constitution and the law", and therefore, Uhuru Kenyatta and William Ruto were validly elected. Nevertheless, supporters of Raila protested and battled the police, and some Kenyans ended up with gunshot wounds.

In addition, Salim Lone, Raila's adviser, said that although the Prime Minister agreed with the Supreme Court ruling, he (Raila) was 'still concerned that the vote was flawed.' From the word go, therefore, Kenyans aborted the judicial authority that the Constitution conferred on the Supreme Court. Under all circumstances, Dr Mutunga, a human rights activist, could not deliver a warped ruling. However, on social media, political assemblies and behind the scenes, Mutunga and the Supreme Court judges were muddied.

Undermining the power of the SCOK is not a malady characteristic of Raila's politics only. After the 2017 General Election, Raila petitioned against the IEBC after it declared Uhuru Kenyatta the winner. At the time, David Maraga was the president of the Supreme Court.

The top court, this time around, nullified the presidential results. Civil society and some notable international media joined Raila's side to brand the SCOK decision as a 'landmark'. President Uhuru and Ruto dismissed the judges as 'crooks'.

So, why was the 2013 Supreme Court ruling not described as a landmark? It can only mean that the judicial authority alone is insufficient to instil confidence in our presidential elections unless the people deliberately cultivate such a culture.

Second, the SCOK is between the devil and the deep blue sea-upholding the presidential election is not good news. Nullifying the polls is mainly praiseworthy. Moreover, when President Kenyatta opted to bring in Raila in a de facto 'handshake government', the civil society and some international community termed his decision wise.

Indeed, it allowed him to finish his term peacefully. It was a necessary evil but a bad precedence. The question on this would be, what is the purpose of an election? Similarly, in the 2022 General Election, the SCOK under Chief Justice Martha Koome threw out yet another Raila petition, ruling that: "Raila Odinga did not provide evidence of his allegations of 2022 electoral fraud." On this, Raila said, "We respect the opinion of the court, although we vehemently disagree with their decision today."

My take from the three Supreme Court judgments is that the judicial system no longer holds the intended finality in authority on presidential election petitions. Isn't it time to explore more nonviolent options to supplement the Supreme Court? Food for thought.

-Dr Ndonye is a senior lecturer, School of Music and Media at Kabarak University