By Dr Charles Khamala On January 9, President Uhuru Kenyatta signed the controversial Election Laws (Amendment) Act No. 36 of 2016 (ELAA). Under that law, in event of failure in electronic voter identification at polling stations or in results transmission, Wafula Chebukati’s Independent Electoral and Boundaries Commission may use manual methods. On January 11, in lieu of street protests, Raila Odinga launched the National Super Alliance (NASA). He said that the opposition would “make it impossible for anyone to try to steal the elections. But we are also sending word to Jubilee again that the cost of stealing this election will be regrettable.” The following weekend, another opposition leader Bomet Governor Isaac Ruto, reiterated claims that Jubilee is “trying to use the manual voting system to manipulate the election in favour of President Uhuru Kenyatta.” He queried unconfirmed discrepancies about Jubilee’s shock 2013 first round victory. After all, “How do we explain a situation where some people turn up to vote for the presidential candidate only? These are dead people whose names have been sneaked into the register. We are fed up with vote theft.” Indeed, what are the chances that some 2 million voters would selectively omit to vote for their senatorial, gubernatorial, MP, women’s representative or member of county assembly exclusively in Jubilee strongholds? He called on Kenyans “to be vigilant and demand credible elections.” Suppressing civil society’s grumblings about the 2013 polls’ alleged flaws, the Supreme Court threw out Odinga’s election petition. Commentators identified various factors that sustained the social peace. These not only include public confidence in the new Constitution, opposition candidates received some devolved power, the International Criminal Court’s threatened prosecution, but most significantly, the government’s silencing of media debate. In light of ELAA’s ratification of manual fallback methods, and amid threatened opposition protests, the question becomes whether the newly-constituted IEBC and Maraga-led Supreme Court possess sufficient “integrity capital” to persuade a dissatisfied public from protesting against a perceived unlawful electoral process in 2017. Perception of electoral integrity In “Why Elections Fail” (2015), for Pippa Norris “electoral integrity, the set of international norms governing the appropriate conduct of elections, is more complex than the popular focus on ballot stuffing and vote buying.” She argues, “The rules preventing political actors from manipulating electoral governance are needed to secure integrity, although, at the same time, officials need sufficient resources and capacities to manage elections effectively.” In other words, election outputs (IEBC’s declaration + the Court’s substantive decision) are only as good as the inputs (resources + procedural rules) that generate them: “garbage in, garbage out.” Modern democratic elections perform the power-transferring function. Through two sub-functions, they effect succession to political office. First, by majority support, the outputs legitimise the new government and its policies. This is the democratic sub-function. Second, by sorcery the inputs extinguish a population’s pent-up need for collective violence harboured against an incumbent leader on account of perceived “State crimes.” This is the magical sub-function. This essay explores the origins, structure and functions of the electoral ritual as a technology for extinguishing a dissatisfied public’s potential for violent protests. Its purpose is to distinguish sacrificial rituals performed by primitive communities and sham elections in authoritarian societies on one hand, from sophisticated technologies deployed in modern civilised democracies to impress citizens about electoral credibility, on the other. After the IEBC conducted a closely-contested but hotly-disputed 2013 presidential election, many critics were dumbfounded when the Supreme Court upheld Chairman Ahmed Issack’s declaration of Jubilee’s first-round victory. To prevent attempts to conduct a forensic audit, the Mutunga Court even threatened Law Society of Kenya Chairman, Eric Mutua, with contempt of court. Thus judicial power manufactured “legal truth” to override “factual truth,” thereby not only endorsing the outcome, but more particularly sanitising the inputs by which Jubilee catapulted into State power. Applying a narrow interpretation the judges termed “fidelity of the law,” they unanimously found that the 2013 electoral results largely reflected the will of the voters. In so doing, they ignored the Constitution’s Article 86(a) prescription that the voting process should also capture the spirit of being “simple, accurate, verifiable, secure, accountable and transparent.” Thus, staging of electoral rituals does not simply entail mechanical application of rules as set out under National Assembly and Presidential Elections Act (Chapter 7, Laws of Kenya). That may simply legitimate tyrannical rule by the candidate whose tribal coalition is able to either register the most number of voters and convince them to vote, or who contrives to make ghost voters participate. A purposive interpretation considers an electoral court’s function, the context and intent of relevant legal provisions. Explicating how Kenya’s electoral law aims to cure all mischief, ranging from outcome, manipulation is beyond this essay’s scope. Suffice it to note that failure to scrutinise the evidence-gathering and the chain-of-preservation procedures, and further failure to cure procedural defects renders the Article 86 public oversight requirement, which operationalises Article 38 political rights, superfluous. Regarding the need to promote the spirit rather than letter of the law, Norris contends that “the perception of electoral integrity” has potential of generating a greater social impact than the actual election outcome. She would consider mere focus on electronic voter identification and transmission of results or manual substitutes as myopic and narrow aspects compared to the overall electioneering process. To believe that elections are determined on polling day is naïve. Thus correcting balloting anomalies alone can hardly prevent or rectify the myriad potential electoral malpractices that may be perpetrated by an electoral body. Therefore, it is necessary to consider how the right to have one’s vote counted accrues beyond strict legalities of voter registration and identification or even results transmission, which Jubilee and opposition legislators have been debating in the ELAA. What is more, the overall procedure of free and fair play should be transparent to the citizenry long before foreign observers fly into a country to corroborate any objections lodged during the campaign or voting period. Suddenly the Jubilee government banned continuous voter education. That directive effected the president December 12, 2016 warning to external powers against influencing the 2017 polls. A week later, Karanja Kibicho, Interior Principal Secretary, terminated the International Foundation for Electoral System’s Sh2 billion “Kenya Electoral Assistance program, 2017.” Yet that NGO has been dispensing on behalf of USAID since 2003. It is no coincidence that the directive stopping IFES from implementing voter education preceded Senate’s invitation of public views on January 4, 2017, which then validated the ELAA’s manual back-up measures. Yet, the danger of an unlevelled electoral playing field is in the detail. Unfortunately, most Kenyans still rely on their anointed ethnic spokesman to determine how their group should cast its vote. Whether before, during and after campaigns or on polling day, we delegate our very decision-making franchise to clan leaders selected by tribal elders. The political parties’ nomination processes settle clan contests. Our group’s role thereafter consists of aligning us with the politically-correct geography so as to seek proximity with the presidency and its benefits. As Election Day approaches, territorial demarcation along ethnic lines coincides with coalition-building. The incumbent’s strategy is to convince a critical mass of ethnic others to associate with his ruling party. At a petition challenging the outcome, a narrow-minded Supreme Court simply verifies whether the IEBC’s declared result represents an accurate compilation of actual votes cast. A broad-minded review evaluates whether a reasonable public is persuaded that the process the IEBC used gave an equal opportunity to all candidates. The latter test suggests using international standards of what constitutes “the perception of electoral integrity.” Why should Kenyan courts persuade the public that an electoral process was conducted procedurally? Arguably because, upon defeat, a loser’s dissatisfaction is not individual but communal. Neither can unsuccessful candidates reconcile their people with the prospects of losing a winner-take-all race, which in Kenya’s pure presidential system – devolution notwithstanding – entails the ethnic community’s banishment to developmental Siberia for a five-year cycle. Astronomical campaign expenditure amplifies the pressure to avoid suffering oblivion while paying political debts. Undeserving defeat invariably escalates into partisan calls to protest against either an illegitimate poll result or an opaque process, or both. To reiterate, the IEBC’s function is not to merely quantify the votes cast per polling station and tally the respective totals to determine the first-past-the-post. Its tasks involve measuring the apparatus, approving the ingredients and reassuring ordinary third-party Kenyans that the quality of the process dispels any reasonable doubts harboured. Thus, the aim is not merely to safeguard the Article 38 fundamental right and freedom to vote. Rather, Article 86 imposes an additional onus on the IEBC to conduct a process that meets the threshold of an acceptable “perception of electoral integrity.” Ultimately, the price of democracy is eternal vigilance. This duty applies – not only in-between elections – to chosen legislative delegates who check the excesses of the government of the day. But more fundamentally – during an electioneering process – it falls upon each and every citizen to oversee the IEBC’s and/or Supreme Court’s sleight-of-hand, which reproduces elite, ethnic or other irrational delegates. Because “any attempt to establish a government otherwise than in compliance with this Constitution is unlawful,” the IEBC’s failure to hold periodic multiparty elections would contravene Article 3(2). Further, because: “Every person has an obligation to respect and uphold and defend this Constitution,” the Court’s failure to ensure that such electoral justice is manifestly seen to be done is protestable by the people under Article 3(1). The Icelandic solution Why do citizens rise up against their own governments? They do so because, as in sports or even economic competition as is also in politics, people hate losing. Yet, zero-sum competition for scarce resources produces winners and losers. Naturally, it is never easy for the latter to reconcile themselves with their defeated status. They tend to have an innate need to somehow externalise the causes of their loss, by projecting it onto an external source. Consider the plight of persons who find themselves on the wrong end of the national political economy. Upon financial losses incurred by private enterprises, loss-making entrepreneurs tend to blame the sovereign who superintends over the economy. Rejecting liberalism’s tendency to individualise one’s reasons for failure, however, it is easier for losers to save face by finding fault in the economic system’s superintendent or by criticising the current constitutional arrangement. How does the incumbent respond to such accusations? In modern democracies, as explained by John Boureman (2011), the solution to a president’s threatened summary dismissal on account of political responsibility – whether for alleged bad governance, perceived “state crimes” or failed policies – is to call for an election. The function of having “one man one vote” is not merely to equalise the statuses of victims with their perceived offenders by reconciling them to each other. Rather, by risking defeat to an opposition challenger, an incumbent demonstrates to the socio-economically vanquished classes that he is not the cause of their dispossessed predicament. Alternatively, as did Britain’s and Italy’s respective Prime Ministers David Cameron and Matteo Renzi in 2016, an incumbent may risk subjecting controversial constitutional issues to a referendum. In primitive Icelandic community, after every nine years, the king was required to take his own life as a sacrifice for his regime’s collective sins, thereby facilitating social regeneration. Sir James Frazer calls this phenomenon “the Icelandic solution.” The reason for such suicide rituals was that the imagined collective crimes, which the subjects attributed to his regime, had to somehow be accounted for. To pre-empt social backlash from building up against the king’s officials failure to account for state crimes, “political purification” became necessary. Its purpose was to avoid an outpouring of phantasmagoric civil anger that would probably consume the entire society. Instead, by the king terminating own life, the Icelandic tradition allocated political responsibility upon him for collective wrongdoings. Upon his martyrdom, social regeneration was catalysed at considerably lower social cost than through upheaval. Unsurprisingly however, kings gradually declined to pay the ultimate price on their society’s behalf. Instead, their first-born sons were nominated to provide sufficient penance, which sacrificial substitute enabled the subjects to come to terms with their own losses, sufferings and misfortunes. On spilling such scapegoat’s blood, the people were able to deny not only real or perceived “state crimes,” but also feel better about their own shortcomings. Anthropologists have shown how people displace their frustrations by practising fatal rituals, which serve as a less painful reminder of their weaknesses. Nowadays, it is hard for an educated public to be deceived by an election ritual where the results are known in advance. That is why many democratic constitutions, Kenya’s too, expressly require that the incumbent shall be ineligible for re-election after a second term. The crucial moment is when a voter enters into the polling booth and indicates their preference by marking a ballot paper. Assume that civic education is sound. Further assume that the IEBC faithfully adheres to electoral rules and regulations. Then, in that liminal moment on separation of balloting individuals, the old society disaggregates and dies. It resurrects in a new form upon announcement of the winning candidate. By way of vote casting and accepting the declared president-elect, individuals not only select their legitimate leader, but they also surrender their “right to engage in collective violence” to redress past injustices. They submit to the new policies proffered by the successful candidate. It is crucial that the outcome should not only reflect the majority preferences, but also that the process should be widely convincing. Clearly, rather than accept societal defeat, incumbents are in the market of looking for scapegoats to slaughter. These Social Darwinian or evolutionary arguments enable us to understand the functional role of elections in modern democratic states. Our leaders are not without their desperate self-perpetuation measures, regardless of costs and consequences. All too tragically, some botched election rituals around the world, which purport to confer legitimacy in a non-transparent manner, have deteriorated into manic cycles of rapid substitution of anointed leaders in quick succession. Power retentions and transfers On one hand, the Kenyan State protects itself from unlawful overthrow and social disintegration. For example, the Penal Code (Chapter 63 Laws of Kenya) proscribes treason and allied offences. This most serious of “political crimes” attracts the death penalty. The National Commission Integration Commission Act No. 12 of 2008 establishes hate crimes. On the other hand, any government’s acts or omissions that violate the state’s own criminal law or public international law are called “state crimes.” Invariably, authoritarian governments are reluctant to proscribe, leave alone prosecute senior political or military leaders. Instead, selected anti-impunity crimes are proscribed and redressed under the Rome Statute. Nonetheless, punishing the persons most responsible for genocide, crimes against humanity or war crimes must be preceded by prosecuting them at the International Criminal Court. Nowadays, international criminal law empowers individuals to hold their governments accountable to respect certain universal values. Consider the litany of sad conclusions to the tenures of Tunisia’s long-standing President Zine el-Abidine, Egypt’s President Hosni Mubarak, Libya’s Muammar Gaddafi or the one-term Côte d’Ivoire President Laurent Gbagbo. By comparison, the political awareness and acumen displayed by President Daniel Arap Moi (1978-2002) makes African depots’ attempts to prolong their authoritarian rule look like amateurish. Upon Kenya’s return to multiparty politics in 1992, Moi survived two relatively explosive but, on balance, democratic electoral contests. First, he instrumentalised one Kamlesh Pattni to raid the Central Bank coffers, manipulated Cyrus Jirongo’s infamous Youth for KANU ’92 through inflationary printing of currency, and zoned the party’s ethnic strongholds through politically-instigated tribal clashes. With acquiescence of the country’s small tribes “whose turn it was to eat,” he retained control over the monolithic independence party, while splintering the opposition’s Forum for Restoration of Democracy into Kenneth Matiba’s Ford-Asili and Jaramogi Oginga Odinga’s Ford-Kenya while Mwai Kibaki hatched the Democratic Party. Moi carried the election, albeit with only 36.6% of the vote. Second, once again in 1997, despite imposition of increasingly crippling donor sanctions, Moi perfected Machiavellian tactics to fragment opposition ranks and inspire loyalty among his critical mass for a 40.60% support. The point is that despite receiving minoritarian votes, and notwithstanding electoral-cum-judicial complicity, nonetheless the public perceived the opposition leaders as authors of their own misfortune, greed and selfishness. Without a credible opposition, a beleaguered international community had little option but to continue supporting the “legitimate” government. By a protest vote expressed in 2002, Moi’s preferred successor, Uhuru Kenyatta, ultimately lost by 31.6% to 61.3% to Kibaki’s National Rainbow Alliance Coalition. More significantly, he peacefully relinquished power without allowing violent protests to engulf the country. Despite riding roughshod over everyone, because he did not deploy military violence, his self-restraint consolidated his legacy as a national statesman or even, as Thomas Wolf argues in Immunity or Accountability: Daniel Toroitich arap Moi: Kenya’s First Retired President (2006), earned “de facto” amnesty. Hence he continues to enjoy the fruits of his labours. What distinguishes the big power transfers at the 2002 and 2013 presidential elections on one part, from the political instability that accompanied power-retention in 1992 and 1997 or even power sharing in 2007, on the other part? Many commentators attribute the former peaceful election episodes to the fact that incumbents were not seeking re-election. Significantly, in 2017 the incumbent is defending his seat. At a personal level, one irritating collateral impact of possible defeat must be the possibility of that it may revive ICC’s investigations that it may revive and prosecutions re-opening against himself or his deputy. Ethnicity apart, the incumbents portray generational change and their development record as their achievement. However, their most pressing challenge lies in equipping the IEBC with rules and resources to conduct a sufficiently credible election so as to extinguish public discontent emanating from the Jubilee government’s perceived mega scandals. These are not limited to the Eurobond borrowings, which allegedly went astray, undelivered laptops to standard-ones, overpriced Standard Gauge Railway tendering or most recently, the National Youth Service billon shilling heist. They also include micro scams like failure to prosecute Chickengate culprits and unexplained assassinations. On Odinga’s part, having attained seventy years of age, this is probably his final realistic opportunity to ascend to State House. Unlike the 90’s when opposition failure was publicly construed as collectively deserved, on this occasion the impact of his defeat is likely to be individualised and therefore personally painful. His sacrifices for the Second Liberation struggle may not captivate 2022’s electorate. Going by recent comparative trends, the world increasingly encourages incumbents to facilitate credible elections but also pressurises losers to concede defeat. The stakes at Kenya’s forthcoming presidential election are high. If defeated unfairly, opposition protests are likely to follow. Thus the actual outcome is likely to attract dispute not only within the legal system, but also in conventional and social media. Shall electoral management by IEBC and the Supreme Court not only abide by the electoral rules, but also manifestly be seen to do so? Can Anglican Archbishop (Retired) Eliud Wabukala’s Ethics and Anti-Corruption Commission consolidate “spiritual capital” to prevent public perceptions from precipitating protests? Although the democratic transformation sweeping across the African continent has wiped away some dictators, other strongmen remain intransigent. Admittedly, Kenya’s previous presidential elections have been mired in both illegitimate outcomes and legal technicalities, which constrain petitioners from exposing flawed electoral processes. There is, however, significant evolution in our electioneering modalities. The Kreigler Report’s (2008) recommendations represent a marked technological improvement from the infamous 1988 “mlolongo” elections where the unopposed incumbent won a landslide victory, while preferred parliamentary or ward candidates with shorter queues were blatantly declared victorious. Meanwhile, in the Internet Age, that electoral deception of voters through campaign lies has become incorporated into the “succession to political power” narrative compounds the electoral manipulation possibility thus producing conflicting trends around a post-truth world. On one hand, some incumbents, like Nigeria’s Jonathan Goodluck, served as a one-term president of Nigeria from 2010 to May 2015 when Muhammadu Buhari was elected. In neighbouring Ghana’s December 2016 elections, Nana Akufor Addo polled 53.85% of the total vote cast against incumbent president, John Dramani Mahama’s 44.40%. On the other hand, Western democracies are experiencing a return to autocratic authoritarian right wing regimes. Demagogues like US President Donald Trump or Brexiters, who successfully campaigned for the UK’s departure from the EU, both partly-supported by electorates fearful of immigration and Islamic fundamentalism. Fascists externalise their social problems, including “State crimes” by attributing them to foreign “others.” On the African continent, this neo-authoritarian turn conveniently revives the African strongman tradition, which holds that a benevolent dictator can provide paternalistic protection against neo-imperialism. At its extreme, such sovereignty-first justification – perfected by Zimbabwe’s Robert Mugabe – inspires removal of term-limits to presidential power. Its East African exponents include Uganda’s Yoweri Museveni, Rwanda’s Paul Kagame and possibly Burundi’s Pierre Nkurunziza. Yet the life presidency model continues to elicit global objections, as President Joseph Kabila in the Democratic Republic of the Congo – who assumed office in January 2001 – recently discovered to his chagrin. On expiry of Kabila’s second term last December, he was due to renounce power. However, on refusal to call elections, protests erupted across DRC cities. Over 40 people were killed while hundreds were arrested in two days of rioting. On New Year’s Eve, he agreed to leave power before the end of 2017, albeit after overseeing the next election. More paradoxically, notwithstanding 22-years in power, similar reluctance to vacate characterised Gambian President Yahya Jammeh. Indeed, he once boasted a “billion-year” mandate to rule. Following the December 2016 election, he initially conceded defeat to Adama Barrow. However he rescinded, calling for a re-run, throwing that country into the brink of civil war. Barrow was sworn in as scheduled while Jammeh declared three months of emergency rule while awaiting his own Supreme Court election petition. He was finally forced into exile in Equatorial Guinea. What lessons can Kenyans learn from Barrow’s offshore swearing-in? Elections: Who needs them? In modern democratic societies, the new technology for diverting public anger away from incumbents’ perceived political failures is through free and fair elections. Even in an authoritarian society, leaders conduct sham elections so as to deflect public anger away from the repressive regime’s excesses. This emphasises how the magical extinguishment of public fury for “State crimes” is derived from political risk as a by-product of a credible election exercise, one where it is possible that an incumbent may potentially lose their seat. Then, political purification catalyses pacific power transfer. Outright vote stealing, or merely delaying the announcement of election results, encourages public perceptions of outcome-manipulation. Furthermore, failure to permit public oversight over the electoral arrangements suggest process-massage. To assist in exorcising the ghost of legal technicalities from re-emerging to legitimise a declared outcome, during the Senatorial public hearings on ELAA, Royal Media Chairman S.K. Macharia offered to conduct exit polls. However, monitoring the outcome in real-time seems hardly sufficient to detect possible systemic anomalies incorporated over three years. Rumour mongering about elections on social media has a double effect. Positively, civic debate stimulates reflection on merits and encourages whistle blowing. Negatively, false consciousness not only deceives voters to support their ethnic candidate. Propaganda also fuels perceptions of incumbency rigging. Unfortunately, if misinformation makes events appear as if the election results are already known well in advance, and that the polling day is merely designated for disclosure purposes, then many voters can become apathetic about an election ritual. Yet it is only where an election is accompanied by the element of uncertainty that an incumbent can magically avoid the Icelandic solution. Nowadays, primitive sacrifices, whether of an incumbent or even scapegoats who suffer random victimisation in widespread uncontrollable conflicts such as accompanied Kenya’s post-2007 bloodbath, are unacceptable proxies for power transfer. Nowadays, social media has rendered the electoral massage model of installing regimes obsolete. The authoritarian strategy of going through the electioneering motions does not satisfy the sorcery of re-generating society amongst those who are socially-marginalised or excluded by genuine economic competition, or through outright looting, discrimination, assassinations or other state crimes. Without political risk to convince electoral losers that they have enjoyed an equal opportunity to acquire public office and change policies, losers crave to protest their systematically conditioned exploitation. Whoever wins Kenya’s 2017 election contest would do well to ensure that respect for rule of law is placed at the core of nation-building strategies. Kenyans may no longer tolerate the practice of denying historical injustices or scapegoating others. The opinion being peddled by some pundits that elections should be peaceful irrespective of outcome and regardless of process is misconceived. Requiring citizens to simply “accept and move on” after their constitutional right to a credible election is robbed is as unrealistic as it is unconstitutional.
Writer is Senior Lecturer at Africa Nazarene University Law School, and Advocate of the High Court of Kenya