Vendetta

In the general election conducted on the 8th August, there were 40,883 polling stations. During the hearing of the petition against the election of Uhuru Kenyatta as president-elect, the election commission admitted -- as Pheroze Nowrojee brilliantly reminded us -- that while it was the law that the Presiding Officers at each of the 40,883 polling stations would scan Forms 34A and transmit the images to the constituency tallying centres, about 11,000 of them failed to do so.

The Supreme Court declared that the election commission had failed to conduct the election in accordance with the provisions of the Constitution or the election law of Kenya but, nevertheless, directed the same commission to conduct a fresh election, presumably, in accordance with the provisions of the Constitution or the election law of Kenya. This, the commission informs us, it intends to do on the 17th October, forty-two days from today. Had the commission taken advantage of the sixty days permitted by the Constitution under Article 140(3), the election would have had to be held on or before the 31st October. 

The commission has been accused of acting in haste in setting the mid-October date. It has countered that the Cabinet Secretary has asked the commission to advance the date of the fresh election so as not to adversely affect the schedule of the national exams, slated to begin in the final week of October. This is a reasonable request because examinations in Kenya are already fraught with so much stress for both students and examiners -- and irritants likes presidential elections may lead to severely damaging outcomes. Arson attacks by children are just the most obvious.

I have a different take. The commission has done everything in its power to shoot itself in the foot whenever a crisis has erupted in the management of the 2017 general election; the invalidation of the presidential election has led to the same inexplicable self-sabotaging behaviour. Had the commission's officials been listening keenly to what the majority of the members of the Supreme Court who invalidated the election of the president were saying, they would have heard reasons for the commissioner's behavioral change and not just legalistic or technical details for the invalidation of the election. One of the reasons for the Supreme Court's judgment was the apparent and naked partisanship of the commission during the hearing of the petition.

This behaviour seems to have carried over to the preparations for the fresh election. We must, of course, make the administration of the KCPE and KCSE as frictionless as possible for our children and the Kenya National Examinations Council, and disrupt the 2018 academic calendars as little as possible. But anyone who believes that national life would not be affected by the judgment of the Supreme Court was not paying attention. Of necessity, so too would the schedule for the national exams be affected. And because the administration of the exams has been done for over thirty years, it is reasonable to postulate that the Ministry would have coped well with the rescheduling of the examinations' start dates without disrupting the education sector unduly.

I see the Cabinet Secretary's request to the commission as the "cover" the commission needed to defiantly stick it to the Opposition one more time just as it had at every turn during the hearing of the petition. The commission's officials don't care about the details for the invalidation of the presidential election; they only care that the Mr Odinga and the Supreme Court have humiliated them before the world and they are determined to pay back at least one of them in kind. Otherwise, of those 11,000 presiding officers and the missing Forms 34A, the commission would have demonstrated how it would find reliable replacements in the coming forty-two days, where they would be trained and what safeguards they have will have installed to prevent the disappearance of Forms 34A into the Bomas Triangle once more. 

More importantly, given the doubts about the reliability of its previous supplier of ballot papers (many of which were missing the security features the commission had designed to reassure Kenyans as to the sanctity of their votes), the commission would have presented the makings of a plan for how new ballot papers would be procured and how their integrity would be assured.

Hanging its hat on parts of the much-reviled 2013 Supreme Court judgment upholding the election of Uhuru Kenyatta, the commission has also chosen to lock out the 2017 candidates from the fresh election, save for Uhuru Kenyatta and Raila Odinga. It had no reason to do so. All it has done is invite legal conflicts when it did not need to. This -- and my previous observations in this post -- persuade me that the commission has fomented a vendetta against Mr Odinga and it intends to wage this sub rosa war until Mr Odinga simply goes away and stops bothering the commissioners. It is now personal between the commissioners and Mr Odinga.