Mr Wambugu is wrong

The United States is a sophisticated banana republic.—Swaminathan Aiyar, Swaminomics

Ngunjiri Wambugu cogently recalls the circumstances in November 2000 that led to the election of George W Bush as the 43rd President of the United States, declaring with customary pomposity that "When Americans have to choose between 'popular' and 'constitutional' they know popular does not cut it." What I imagine Mr Wambugu means is that it mattered not to the citizens of the United States that Al Gore, Mr Bush's opponent, did not win the popular vote, but that he lost the electoral vote, by which the US electoral college elects the President of the United States. Mr Wambugu is correct.

However, Mr Wambugu misses the big picture. I quote Mr Aiyar again,

...[US] citizens have no fundamental right to vote in a presidential election.

This is an interesting discovery. Article II of the Constitution of the United States deals with the Executive branch of the US federal government and how the President of the United States is elected. It doesn't provide for a right of US citizens to elect their president and commander-in-chief, but for the creation of the Electoral College that does elect the President of the United States. As Mr Aiyar notes, this is deeply undemocratic, on par with the notorious banana republics of Latin America such as Cuba and Venezuela.

Mr Wambugu makes a startling declaration: the Constitution of Kenya was ratified by 70 percent of Kenyans. By his count that is close to 28 million Kenyans. Just as in his analysis of the US presidential election, Mr Wambugu is a little too free with his facts. The Constitution of Kenya was ratified by 70 percent of voters who actually chose to vote in the 2010 referendum, not 70 percent of the population. This is an important distinction. (All Kenyans under the age of 18 years were disenfanchised by fiat and there is no absolute reason to believe that they would have supported the view of the 70% of the voters who chose the harmonised draft constitution. But I digress.)

Kenya is not the United States. Kenyans actually have a right to vote (Article 38). This is a right that is regulated by the Elections Act, the Political Parties Act, the Independent Electoral and Boundaries Commission Act and the  Election Campaign Finance Act. Despite these statutes, the right to vote is absolutely protected by Article 38.

Mr Wambugu's incredible assertions are in the context of Raila Odinga's anti-IEBC campaign. Mr Wambugu states that what 28 million Kenyans have endorsed—that Kenyans will vote as organised by the IEBC—Mr Odinga cannot overturn by extra-legal, extra-judicial or -extra-constitutional means such as mass action. Of course Mr Wambugu is talking through his hat.

First, as Mr Aiyar demonstrates, the USA is not the best example of a democray, especially when it comes to presidential elections. Second, the Constitution of Kenya was not endorsed by 28 million Kenyans, but less than 10 million (based on the 12 to 14 million adult Kenyans the Interim Independent Electoral Commission had registered for the referendum, of whom 70 percent ratified the harmonised draft). Third, while there is a constitutional and statutory process for the removal of the IEBC commissioners, there is nothing preventing Mr Odinga and his supporters marshalling popular antipathy against the IEBC and shaming them to resignation. Their right to assemble, demonstrate or picket the commissioners is protected by Article 37.

Mr Wambugu and like-minded pro-government windbags live under the cozy illusion that a government can only be brought down by the means set out in the Constitution that they like, and that all other constitutional means are illegitimate. Mr Odinga is painfully aware that he probably doesn't have the technical proof needed to remove the commissioners of the IEBC from office nor that a petition for their removal will receive the endorsement or support of the Jubilee-dominated national Executive or Parliament. 

Mr Odinga is shrewd enough to know that he does not need proof at all; if the IEBC's commissioners will ignore the pricking of their consciences regarding the doubts regarding their integrity, Mr Odinga is determined to remind them using the other bits of the Constitution that Mr Wambugu & Co deprecate. Popular pressure brought our Constitution to life. Popular pressure might yet force the IEBC commissioners out of office. I finish with Mr Aiyar's words once again,

Justice Stevens’ dissenting opinion said it all. “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the law.”

Substitute "judge" with "IEBC" and marvel at the thing of it.