It isn't all Mr Chebukati's fault

Many things can be true simultaneously. Chocolate is awesome; chocolate milk is an abomination. Pumpkin soup is food for the soul; malenge is the Almighty's punishment for bringing into the world things like Twitter. Political parties are the weak link in the political process; political parties must be strengthened in order to strengthen democratic norms. The solution for weak political parties is a combination of better statutory regulation and greater engagement by voters and politicians alike.

Many political party apparatchiks are bad at their jobs. They encourage the worst instincts of their political benefactors, who are quite often the owners of the briefcases in which the political parties are kept. The illiberalism experienced in Kenya's political institutions is but a manifestation of the illiberalism endemic in political parties. Whether it is on the question of gender representation or internal democratic processes, none of Kenya's parties is as liberal as they claim to be or demand of their rivals.

It is for this reason that the claim by the likes of Mr Makau Mutua accusing Mr Wafula Chebukati of dictatorial tendencies rings hollow. For sure Mr Chebukati has not conducted the affairs of the election commission during the presidential election of 2022 in a transparent or consultative manner. But he is only a reflection of the standards established and promoted by the presidential candidates he was supposed to shepherd to the end of the election period.

For example, when Azimio la Umoja One Kenya Alliance selected Ms Gladys Wanga as its candidate in the Homa Bay gubernatorial election, it was done in the face of opposition of other candidates in the party. When the United Democratic Alliance nominated Mr Rigathi Gachagua, it was in direct contradiction of the pledge made by its presidential candidate that the party would nominate a woman as his running mate. When the Roots Party of Kenya presidential candidate threw his weight behind the Azimio presidential candidate on the eve of the general election, he did so without consulting his running mate who had made personal sacrifices to stand with him in the general election. It is almost certain that he did not consult the rank and file of his political party. No one even knows who the senior members of the Agano Party of Kenya are given the prominence given to its leader. It'll take nifty googling to even recall the name of his running mate in the presidential election.

The same is reflected in all political parties. The effect of sun illiberalism are plain to see. Roads, ports and bridges built without consultation., transparency or accountability. Educational policies implemented without due regard to the real-world harm many of them cause to young and vulnerable Kenyans. Economic programmes are implemented without addressing the long-term effects of unsustainable public debt policies on the provision of public goods and services to the greatest number of Kenyans at the lowest cost.

Mr Mutua and his counterparts in the other political parties are largely responsible for entrenching the illiberal impunity that they cavil against in the pages of Kenya's tabloids. They should not be allowed to get away with it. They must be held to account for their part in the dysfunction in public institutions. Though they may have played leading roles in shattering the KANU hold on public affairs, they cannot be allowed to get away with entrenching KANUism in the political parties they founded or joined. If they are going to accuse the likes of Mr Chebukati of dictatorial tendencies, they must admit, publicly, that they had a hand in encouraging Mr Chebukati to see himself as Julius Caesar after the Roman general crossed the Rubicon with his army.

Umbrellas, fans and tonnes of shit

The arguments that are being fashioned in aid of the challenge in the Supreme Court against the presidential election result include claims that the process was manifestly unjust. This particular argument has been advanced by men and women with a deeply vested interest in a ruling of the Supreme Court that reverses the election. I fear that the arguments will not be sufficient.

It is possible to make the case that the election to the Houses of Parliament, Governors’ mansions and county assemblies were mostly above board. It is possible to make the case that the election commission did a bang up job and that few, if any, of the elections of members of the National Assembly, senate, county assembly or county executive will be reversed because the process employed in the elections worked without a hitch but that the presidential election was marred the moment polling stations reported their results, county tallying centres uploaded their Forms 34B and the chairperson tallied, verified and announced the presidential election result.

The Court of Appeal and Supreme Court have raised the bar on the standard of proof needed to impeach a presidential election. If the court agrees with the allegations of the petitioner, together with the petitioner’s reliance on the allegations by the majority of the commissioners about the chairman’s behaviour, then the election will be annulled and a fresh election will have to be conducted. The court will have to accept the argument that the commission did not verify and tally the result and, therefore, the chairman should not have announced the results he did. One reason to agree with the petitioner will have to be about meanings of terms: “commission”, “verify”, “tally”, “business of the commission”, and so on and so forth.

The respondents will have to defend their actions, especially the chairman of the commission’s decision to sideline the other commissioners when verifying, tallying and announcing the results. He will have history on his side. Moi, in 2002, tried to engineer a favourable election commission, delaying the reappointment of Messrs Kivuitu and Co. His project lost resoundingly in the presidential election. Kwai Kibaki pulled the same trick in 2007. It ended in an orgy of violence that led to the indictment of his successor and his successor’s deputy at the International Criminal Court. The incumbent delayed the appointment of commissioners for so long that it undermined the commission’s preparations for the 2022 general election.

Whatever the case, no one will emerge from the presidential petition smelling of roses. Kenyan presidential politics has the ability to stink up the political and judicial process in such a way that public confidence in public institutions is seriously undermined. The next fourteen days will be a study in who had an umbrella when the shit hit the fan, and who enjoyed rolling about in the muck.

The forest and the trees of numbers

It is futile to expect the general election, especially the presidential election in a general election, to run without any dispute. While there are many “mature” democracies where the disputes are not prolonged, it is the nature of the beast that there shall be disputes. Kenya, infant democracy that it is, has a long and storied history of presidential election disputes. What is notable about the 2022 presidential election, is that it is not part of a grand opera of election violence. That’s progress of a sort.

I am not surprised that Raila Odinga has disputed the outcome of the presidential election. I am not surprised that William Ruto doesn’t think much of the dispute alleged by Mr Odinga. I am not even surprised that there are alleged behind-the-scenes shenanigans, some of a deeply disturbing and violent nature, that are connected to the behavior of the candidates, the election commission or other agencies and high offices of state. What is new, is that the dispute is based on the procedural powers and functions of the chairperson of the commission.

Article 138(10) says that the chairperson of the commission shall declare the results of the presidential election and notify the Chief Justice and incumbent president of the result. There’s little that is ambiguous about that provision. The obligation to announce and notify is placed on the chairperson of the commission. Article 138, broadly, sets out the procedure at a presidential election. The details of that procedure are set out in the Elections Act and the Elections (General) Regulations. So far as I know, the procedure does not require approval of the final tally contained in Form 34C by the other members of the commission. Indeed, the procedure does not require the details of the information contained in Form 34C to be discussed at a plenary session of the commission so that the commission may take ownership of the results.

In brief, and I’m taking massive liberties, the procedure is pretty straightforward. The ballots cast in a presidential election are cast at the polling station in each ward. The results in the ward are totted up and entered in a Form 34A. In the 2022 presidential election there were 46,229 polling stations, hence 46,229 Forms 34A. All the Forms 34A from all the wards in the constituency are forwarded to the constituency tallying centre, where the totals from all the Forms 34A are entered in Form 34B. There are 290 constituency tallying centers and therefore there are 290 Forms 34B. The 290 Forms 34B are then forwarded to the national tallying centre, and the totals are added up and a final sum entered in Form 34C. Meanwhile, each of the 46,229 Forms 34A are uploaded onto an electronic database, accessible by the public.

So far as I know, the commission does not weigh in on the totals contained in the polling-station-level Forms 34A, though it has powers to correct any errors if the errors are manifest on the face of the forms. But the individual Forms 34A or 34B are not the subject of discussions and deliberation before the commission’s members. They are the responsibility of returning officers (at the polling station) and the tallying officers (at the constituency tallying centers). The tabulation of the totals contained in the 290 Forms 34B requires patience. The totals contained in the 46,229 Forms 34A must be verified; once that happens, the rest is straightforward enough.

The question of a plenary session before the final tabulation of the Form 34C is interesting. Is it a statutory requirement or an administrative custom? Is there a constitutional, statutory or customary obligation for each commissioner to “own” the tally? I don’t think the question of “ownership” can impeach the tally contained in the Form 34C. In my opinion, the Form 34C can be tossed out if the tally contained in the form departs from the totals contained in the 290 Forms 34B or if those 290 forms are not a true reflection of the totals derived from the 46,229 Forms 34A. The commissioners’ two-step dance is a distraction from the real question that must be answered: are the numbers derived from 46,229 Forms 34A, 290 Forms 34B and one Form 34C wrong?

The era of Jicho Pevu is over

 “Th' newspaper does ivrything f’r us. It runs th’ polis foorce an’ th’' banks, commands th’ milishy, controls th’ ligislachure, baptizes th’ young, marries th’ foolish, comforts th’ afflicted, afflicts th’ comfortable, buries th’ dead an’ roasts thim aftherward.” - Peter Dunne

Kenya's softly-softly and incremental approach to constitutional reforms and implementation of the values and principles of the 2010 Constitution adopted an international norm as a truism: the press must be free to report the news, warts and all. Kenya's press, however, seems intent on devaluing the freedom protected by Article 34 through its cowardice, incompetence and greed.

In 2017, when Kenya last held a general election, it had become painfully apparent that the news media companies were in the grip of the political classes and certain parts of the State. Due to the intense competition between them, profits had shrivelled. Due to certain State policies, especially tax and anti-gambling policies, future revenue streams were threatened. News media companies laid off throngs of news reporters and journalists and replaced them with cut-rate entertainers. Investigative journalism - the kind protected by Article 34 - suffered the sharpest cuts. The era of Jicho Pevu is well and truly over.

In 2022 the extent of the decimation in the news media is apparent. This general election has laid bare the depth of the fall of the journalism sector. In contrast to 2017, where France-based server operators could not be roused, and the electoral body disobeyed the Supreme Court and refused to "open the servers", access to some of the raw data has been free and unfettered. Everyone and their cat has access to results forms for the presidential elections from the 46,000+ polling stations. Every news media company in Kenya has the chance to maintain a running tally (unofficial, of course) of the numbers, and informing their viewers and readers of the state of the presidential election. The news media has refused to do this.

It is not the job of news reporters and journalists to fondle and fellate the testicles of those whose they report on, not for money, not for access and not for favours. But here we are. We should have seen his coming. News media companies are profit-making entities. The bottom line is all that matters to shareholders. The health of journalism is important only insofar as it guarantees a fat profit margin. Business models that were based on advertising have cratered; advertisers have greater access to eyeballs than through classified pages or 30-second TV spots. The internet has democratised advertising and put a stake through the heart of the news business. Kenyan news companies have not adapted well.

Some have gone into gambling. Notice the number of TV ads promoting mobile betting? Some have got into entertainment. The share of entertainment programmes on TV outstrips news or educational media by a very, very wide margin. Some have started tabloids devoted to salacious and vulgar fare, in the hopes that advertisers will flock to those yellow rags. But the greatest change has been the severe moderating of the content published in the Op/Ed pages. Carefully reasoned anti-establishment screeds have been spiked; by and large, these days, it is milquetoast statements designed not to offend wabenzi. Kenya's journalism no longer afflicts the comfortable nor comforts the afflicted. Kenya's journalism is comfortable, its comforts coming from the assiduous attention of the political classes and State officers. The comforts are repaid by a supine, knees-apart approach to truth-seeking. If you have your mouth full of someone's testicles, you're not going to complain that his asscrack is rank, are you?

For this reason, and many more, you will not see them tell you the unvarnished truth about the Form 34s. You won't see them rock the boat. You won't see them lead from the front. You won't see them call out injustice and unfairness. You won't see them investigate political corruption. You won't see them defend the weak. You won't see them because they don't want to be seen. They just want to make money and have a good time. In short, they don't want to do their job but they want to get paid the big bucks.

The war of blame-shifting

"Let me apologise on behalf of the government. The electoral commission must be given whatever they want, whenever they want it in order to be able to carry out the free, fair, and justifiable election." - 3 August, 2022

The discerning among us will realise that the underlined italicised words have the effect of shifting blame from the maker of the statement to the beleaguered IEBC. The speaker apologises - and adds that it wasn't his fault. It was that other fellow who done us wrong. I did my job. Leave me alone.

It frequently surprises me the lengths to which men with power will go to avoid carrying the can for their decisions. This man is no different. He does as he pleases. Then when the shit hits the fan, he dissembles. When that doesn't work, he finds some hapless underling to blame for his actions. He almost never takes responsibility for his actions. It is almost always someone else's fault. Kwani mnataka nifanye nini? seems to be his modus operandi.

Despite the theatrical antics one or two irascible Kenyans, everyone and their cat knows that general election in Kenya shall be held at the end of five years after the previous general election. This is not rocket science. With this cast-in-stone calendar in mind, and knowing that polling stations in Kenya are public schools, no government official, regardless of his station in the firmament of the state, can pretend not to know this fact. Consequently, planning for the "disruption in the school calendar" during an election year should not be the cause of poor planning or poor execution of existing plans.

A responsible person would admit that they were wrong and leave it at that. A responsible person would know that sifting blame is the sign of a bad leader. But responsible persons do not consistently behave the way our speaker does. His notoriety is no longer amusing. Since he took up his job, he has acted as if he is surrounded by utter imbeciles, that only he knows what is best for everyone else, that his public statements are made for our own good, that he has no obligation to be careful, dignified or kind. He acts the way he does because he is utterly confident in the justness of his ill-judged causes and, more crucially, that he can and shall get away with them all.

Responsible behaviour is not a feature of the majority of his work colleagues, though. Few of them take the time to carefully consider the import of their public statements. They indulge in the most callous acts in the course of their official duties secure in the knowledge that the hoi polloi can do nothing about it - save, perhaps, to vent on social media sites, a largely futile fact in the face of social media engineering by well-resourced #547 "bloggers".

In 2003, in the wake of the Yote Yawezekana Bila Moi moment, Kenyans were found to be the most optimistic people in the world. That moment did not last. If the same Kenyans who responded to that poll were asked the same question today, how much are you willing to wager that the poll will reveal depths of despondency only experienced by people living in a war zone?