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.