Despite Supreme Court Ruling, free and fair Presidential Elections in Kenya is still a pipe dream

by Odipo Riaga · September 1, 2017

Supreme Court ruling rendered today in Kenya is the biggest landmark ruling on Presidential Elections in the history of Africa, and probably anywhere in the world. Recently, the Constitutional Court of Austria nullified the election of their President based on findings such as “officials responsible for counting votes had paid little regard to official guidelines” e.g. the officials started “to count without election observers present in the room”. Although that ruling was also seen as a first in the world, the presidency in Austria is a ceremonial one so the impact of that ruling lacks the magnitude the Kenya’s Supreme Court ruling just had.

The gist of the Supreme Court Ruling is that the 2017 Presidential Elections in Kenya were not conducted in a free and fair manner. In particular, the ruling noted that the Electoral Commission failed to adhere to the principals of the country’s Constitution and the guidelines set by Elections Laws and Regulations. Consequently, the Supreme Court of Kenya has ordered for a rerun of the Presidential Elections which must be done within sixty days from today.

Now that the Supreme Court Ruling has made it clear that Kenya will hold another Presidential Elections on or before 31st October 2017, the question in many people’s minds is if the next elections will be conducted freely and fairly. Already NASA principals and lawyers have expressed lack of faith in the IEBC, and as such have called upon the commissioners and secretariats that conducted the 2017 elections to resign. The coalition is also planning to file criminal charges against Chebukati and Chiloba for failing to adhere to the provisions of the Constitution and Elections Laws during the 2017 General Elections.

Although NASA and their supporters point fingers to the commission as the body that has consistently failed to provide free and fair elections to Kenyans, the biggest failure is lack of control in campaign financing and the voters themselves.

The voters loved being bribed. They love when they are given free t-shirts and caps bearing their party’s logos and candidate’s images. They love when their parties command big rallies, use choppers to hop from rally to rally, and spend millions on unnecessary advertisements.

The candidates who want to win must therefore satisfy the longings of the voters. They must get the millions and billions to oil their campaigns. They must borrow. After the candidates have borrowed, they are put under pressure by their financiers to win at all costs. The candidates must then create violence if need be, they must bribe their way through nominations, must influence the electoral commission either through bribes or intimidation, the candidates must do whatever it is within their powers to ensure the elections are done in their favor.

The Supreme Court Ruling determined that President Uhuru Kenyatta did not break the constitution or any elections laws, well and good. But it goes without saying that lack of obedience to the constitution and elections laws benefited President Kenyatta. In so agreeing, we would together acknowledge that President Kenyatta could have had a big hand in influencing the Electoral Commission to disobey the provisions of the Constitutions and Elections Laws so that the elections end up in his favor.

As long as President Kenyatta or any other politician who has acquired billions of shillings in fundings and is under pressure to pay back those billions will be running for elections in October 31st 2017, there is no reason to expect that the next elections will be free and fair.

For totally free and fair elections to be held in Kenya, it is upon us the voters to emulate the voters of Igembe South who voted in for a 24 year old and poor Independent candidate John Mwirigi. “We decided to elect him. He had no money for campaigns but he offered good pledges and his manifesto was good,” a resident explained when they were asked why the voted for him.

During the campaigns, John Mwirigi was under no pressure to influence the Electoral Commission. He had no means to create circumstances that would favor him. And after the elections he has no reasons to either accept bribes or demand more than sufficient remuneration for his services as no financiers are demanding payback.

If the electoral process for the candidates was lean and affordable for the candidates, then we would expect the process to be free and fair, but as it stands, hoping to witness free and fair elections remains a pipe dream. Costly campaigns therefore is the biggest reason we have elections that are always improperly influenced.