No doubt. Kenya is facing a Solomonic test that begs for Solomonic wisdom. After the Supreme Court of Kenya nullified president Uhuru Kenyatta’s win, Kenya, once again, was pushed back to square one as far as the search for its president is concerned. September 1, 2017 goes to the annals of history as the day, for the first time in East Africa, Africa and the world at large, president’s results were nullified.
What a big blow for rulers in countries in the region who tamper with the constitution to cling unto power! For, from what transpired in Kenya, many citizens have seen the beauty of having progressive constitutions. This means; Kenya is now shifting gears from presidential democracy to Constitutional democracy. Notably, up till now, the full ruling and the rationale thereof have not been known. For, the court hasn’t yet released them.
However, the Supreme Court, in its decision, ruled that Kenya’s presidential election was not credible, free, fairs and verifiable; thus invalid, null and void thanks to the illegalities and irregularities the court found. The said election didn’t meet constitutional prescriptions as stipulated in Kenya’s constitution. Therefore, the Court ordered the rerun within 60 days of make or break that will decide the future of Kenya.
With Kenya’s future hanging in the balance, as country and a people, needs more than what it takes to come out of this imbroglio peacefully and safely. There are a few reasons to think that anything can happen though elections and a long waiting that followed were peaceful and hopeful.
First, I don’t think; the time stipulated in the constitution is sufficient enough for Kenya to conduct credible, free and fair presidential election. Apart from the constraints of time, there are resources constraints such as finance, logistic, procurement of electoral materials and whatnots.
Secondly, the body charged with conducting the election, the Independent Electoral and Boundaries Commission (IEBC), like the court, is now at the receiving end, especially from the losers of the petition. Recently, president Kenyatta and his deputy slung mud at the judiciary while the opposition, the National Super Alliance (NASA) said categorically that the IEBC has lost its credibility, thus, it cannot conduct another election. While the NASA wants the IEBC to pack And hit the road, the status quo prefers it to conduct the rerun as prescribed in the constitution.
This means: Kenya is facing legal-cum-political impasse at the same time. The situation becomes even dire due to the fact that the constitution stipulates that elections should be conducted in 60 days shall the results be nullified.
Legally speaking, such provisions were enacted to deal with parliamentary; and possibly gubernatorial and other disputes but not presidential. This is why the Supreme Court’s ruling caught Kenya off guard. Never had in Africa any presidential victory been quashed.
Thus, those who enacted the law didn’t expect such an eventuality would happen. Is Kenya capable of conducting a credible, free and fair election within the confines of the constitution? How if the NASA doesn’t trust the IEBC? Will wisdom dictate that Kenya amends its constitution to accommodate this eventuality?
Third, apart from legal limbo and political imbroglio-cum-quandary, recently the situation took a bad turn when President Kenyatta and his deputy, William Ruto, attacked the decision; and referred to the Supreme Court as Kangaroo court and judges wakora or crooks which is unfortunate and bad. Ironically, the same said that they will respect its decision!
Fourth, looking at how diverging and discordant the campaigns and polls were, Kenya is currently divided right down the middle gyrating around ethno-affiliations. This shifts national politics to ethnopolitics whose tendencies are always deadly and unpredictable if we remember the 2007-2008 Post-Election Violence (PEV).
I am not trying to be a doomsayer or a worrywart,. chiefly when I explore the fact that the protagonists who caused such a crisis are almost the same save that this time the competition is between Kenyatta and Raila Odinga as opposed to Mwai Kibaki and Odinga. Importantly, the duo comes from the same antagonistic tribes and their alliances.
Now what should be done to do away with this catch-22?
Firstly, the Supreme Court should caution politicians about the contempt of court. Shall they stand their ground; they must be sued and punished. This will de-escalate the looming danger such monkey business can cause.
Secondly, the NASA must go to court to stop the IEBC from conducting the rerun. For, it was found liable for some criminal negligence; and partly the contempt of court due to refusing to allow the petitioners to access some evidence as ordered by the court.
To cut a long story short, Kenya needs Solomonic wisdom to pull it out of the limbo is in. and this is only possible shall all Kenyans stand as one as they shy away from their tribal bubbles.
Nkwazi Mhango is a Tanzanian writer who is based in Canada