NASA has said they will not boycott elections. They have instead insisted that unless certain irreducible minimum conditions are met, Kenya will have no elections on October 17th 2017 or any other date that is legally within 60 days after a presidential petition has been determined. Actually, latest developments that touch on O.T. Morpho’s capability to provide ICT support for the elections indicate that elections will be held a week or two weeks after the gazetted October 17th 2017 date, but IEBC is yet to communicate these developments clearly.
The statement by NASA that unless those irreducible minimum conditions are met Kenya will have no elections has sent confusion among citizens and competing parties. On Sunday during a campaign rally at Mwiki Kasarani, Deputy President William Ruto said that Kenya may not hold elections only on two situations, 1. when there is a coup, or 2. when there is mass protest/violence. The Deputy President went ahead to state clearly that the Government will not allow any form of violence to deter or prevent the fresh elections from taking place. Moses Kuria would even go ahead to state that in case Raila causes any violence on election day, then they’ll put him under house arrest.
Even as much as Jubilee understands that the only way Kenya may have no elections is when there is a coup or when violence erupts on election day, NASA has maintained that what the coalition means is that elections in Kenya is defined and characterized in the Constitution, and that if anything is held in the form of an election that doesn’t meet that definition and characterization, then whatever it is that has been held cannot be legally recognized as an election.
By definition, NASA claims that election in Kenya is a process through which the People of Kenya delegate their sovereign authority to elected individuals in the Executive and Parliamentary arms of Government. By characterization, NASA cites the Bills of Right (Political Rights) in Article 38 (2) that provides that “Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors”. Consequently, NASA holds that an election done that does not comply to the principle of “universal suffrage” and the principle of “free, fair and regular elections” is not an elections.
We all understand what it means to have a “free, fair and regular elections”. Universal suffrage on the other hand provides that all adult citizens have the freedom to exercise their democratic rights to vote no matter their sexual orientation, skin colour, religion, tribe, gender, or occupation.
The principle of “free, fair and regular elections” alongside those of “universal suffrage” are further expounded in Article 81 of the constitution. Article 81 (e) provides that elections are considered free and fair when they are:
(i) by secret ballot;
(ii) free from violence, intimidation, improper influence or corruption;
(iii) conducted by an independent body;
(iv) transparent; and
(v) administered in an impartial, neutral, efficient, accurate and accountable manner.
Characterization of elections in the constitution doesn’t end there. In Article 82 which deals with Legislation on Election, the Constitution states in subarticle 2 that “(2)… voting at every election is—(a) simple; (b) transparent”. Further, in Article 86 that deals specifically with voting, the Constitution in part (a) states that “whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent”.
These Constitutional Provisions alongside other personnel issues are what NASA has termed irreducible minimums. That is, if an election is held that does not respect those constitutional provisions, then Kenya shall have held no elections. Of course it will be upon NASA to prove in the Supreme Court that an election held that does not meet their minimum demands hasn’t met the Constitutional Provisions on elections.
I don’t know whether you agree with NASA or not. Jubilee does not.