Kenyan Elections can be postponed in two ways without causing a constitutional crisis

“Don’t count your eggs before they hatch” is a saying one would use to warn both Jubilee and NASA not to count their victories before the Kenyan Elections scheduled for August 8th 2017 are held. However, although it appears the elections on August 8th will happen without fail as the date is cast on stone (a constitutional amendment via referendum will be needed in order to change the election date), I would use the same saying to warn Kenyans against hoping too much that the elections will actually be held on August 8th 2017.

Is there anyone who would want the elections postponed? In the recent weeks, Jubilee has made claims to the effect that NASA is frustrating IEBC through court processes so that the August 8th elections are postponed, an accusation NASA has dismissed over and again as pure propaganda.

Recently in a statement claiming that Uhuru is not ready to handover power, the NASA presidential flag bearer Rt. Hon Raila Odinga reiterated that Jubilee’s accusations as lies, “Cornered by their failures and threatened by fears of losing power, President Uhuru Kenyatta and Deputy President William Ruto have in recent couple of weeks resorted to lying—intentionally, deliberately, and consistently to the country in addition to resorting to intimidation of independent institutions as campaigns have tightened and things swing out of the president’s control. Two lies the President has consistently told is that NASA wants elections postponed and that the Opposition is interested in a Nusu-Mkate arrangement that will see the Opposition end up in a shared government with Jubilee” Raila said.

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Despite NASA dismissing the accusations as lies, Jubilee has insisted that NASA is not ready for the elections. The accusations and counter accusations that Jubilee and CORD/NASA are not ready for the elections did not start today. In November 2016 a certain MP drafted a  Bill for the postoment of the elections, the Bill that Jubilee said was sponsored by CORD and which CORD said was sponsored by Jubilee. On the flip side, NASA has consistently accused Jubilee that Jubilee is conspiring with IEBC to rig the elections. Jubilee’s response to this accusation is very interesting.

In campaign rallies in former central province, President Uhuru Kenyatta said, not in exact words, that “Raila has been going round saying that Jubilee wants to rig the elections. When someone claims something too much, it is them who want to do what they say. They are the ones who want to rig the elections. And we know that.” Thus, if Jubilee believes that the one who who makes unsubstantiated claims is the one who wants to do what they are claiming, then we can all agree that it is Jubilee that wants the 2017 Kenyan Elections postponed.

The question at this point is, why would Jubilee want elections postponed? The answer is straightforward, Jubilee is very much likely to lose in a free, fair, transparent, credible and verifiable elections. To make matters worse, the biggest loophole Jubilee could use to easily rig the elections was sealed once the Court of Appeal upheld a High Court ruling that announcement of Presidential results by Constituency returning officers will be final. If you remember clearly, it is around the same time that Jubilee started accusing NASA of wanting the election date postponed so that NASA can ask for a coalition government.

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If Jubilee cannot win in a free and fair elections, then their best move would be to have the elections postponed, but they can’t risk being seen as the party that badly needs the postponement, so they use Court cases filed by NASA against IEBC to shift focus to NASA that NASA is the party interested in postponement of the elections. This card would provide Jubilee with two winning strategies:

First, a postponed elections that is purely blamed on NASA will give the electorate an idea that NASA was losing, so there would be no need to vote for them even in the new date. Secondly, postponement of the elections will give Jubilee sufficient time to implement whatever rigging strategies they have up their sleeves. Take for example the 2013 elections. The postponement of the 2012 August elections to March 2013 worked to the benefit of Jubilee coalition and Kibaki’s arm of government, as the increased time allowed the state machinery to put in place systems that helped realize a flawed election.

The next question would be, how does anyone (be it Jubilee or NASA) effect postponement of the elections without creating a constitutional crisis? There are two scenarios, either the party interested in the postponement:

  1. Take the country to war under Article 102 of the constitution, or
  2. Take advantage of Article 138 section 8 (b).

Constitution of Kenya, Article 138 (8) says:
A presidential election shall be cancelled and a new election held if—
(b) a candidate for election as President or Deputy President dies on or before the scheduled election date.

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The first option is a financial nightmare while the second option is unthinkable, although not impractical. So as much as anyone would want the elections postponed, it is rather obvious that that postponement will come at a very costly price. We can’t count our eggs before they hatch, can we?

Odipo Riaga
Managing Editor at KachTech Media
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