Reforms or Elections? Whose irreducible minimum is truly irreducible?

Ever since the Supreme Court of Kenya (SCoK) ruling of 1st September, Kenya has become the tower of Babel. So-called “political analysis” is full of politics and no analysis. The national political discourse in the media is no better than the political banter in the average Kenyan sitting room or the common village palaver we used to call “mῦng’etho”. People seem not only entitled to their own opinions, but now they are entitled to their own facts!  I consequently made a conscious decision to stay out of these TV driven mundane political discourses and to leave the arena to “political analysts” of all intentions, persuasion and competence, mostly dubious on all counts.

But something has changed!

The immediate effect of the SCoK ruling was that the IEBC gazetted Raila Odinga and Uhuru Kenyatta as the only candidates who would participate in the fresh election. Ekuru Aukot contested that decision in the High Court in Petition Number 471 of 2017.  Justice John Mativo gave a judgement on 11th October, 2017 stating, inter alia, that all the original eight candidates were entitled to be on the ballot. He gave specific orders in respect of the petitioner. IEBC proceeded, suo moto, to include all the other presidential candidates on the ballot for the 26th election. .

I therefore find myself back in the ballot, and I find my readers, followers and constituents asking me to say something. I would still like to avoid the senseless pseudo-analytical political orgy on TV and other media and therefore find my blog the most convenient place to engage.

I will be brief and to the point.

The current state of the race is that while IEBC is proceeding to organize and conduct an election on 26th October 2017, Raila Odinga has issued some irreducible minimums on electoral reforms and withdrawn from the election until his irreducible minimums are met.

The IEBC has, on the other hand, said it will proceed with the elections as the irreducible minimum, and that since Raila Odinga has not filled Form 24A, his withdrawal is null and void and therefore his name will be on the ballot come the 26th October.

So, the million-dollar question is: Reforms or Elections? Whose irreducible minimum is truly irreducible?

First, the matter of reforms. Is there need for reforms on the electoral process? Yes. The needed reforms are varied and far-reaching depending on who you ask. As a player, Raila has given his version of the reforms making some demands, mostly genuine and legitimate ones.

Then the matter of elections. I have carefully read the judgement of SCoK relating to the matter of the 2017 Elections. IEBC is organizing and conducting the 26th October elections pursuant to the SCoK’s majority judgement in Raila/Kalonzo Election Petition No. 1 of 2017. The relevant orders of that judgement are to be found in paragraph 405 (iv) and I quote:

An Order is hereby issued directing the 1st respondent to organize and conduct a fresh Presidential Election in strict conformity with the Constitution and the applicable election laws within 60 days of the determination of 1st  September 2017 under Article 140(3) of the Constitution”.

I repeat… “An order is hereby issued directing the 1st respondent…”.  A court order can never be made clearer!

This order has not been vacated and has the full force of law and can only be vacated by the Supreme Court of Kenya. Legally, WE MUST have an election on or before  midnight of 1st of November 2017, with or without reforms. The SCoK ruling is therefore the truly irreducible minimum. The matter of electoral reforms, though necessary and urgent is not sufficient to vacate the Supreme Court ruling.

My contention then is that we do not have a legal or a constitutional crisis and we will not have one, provided order 405(iv) of the Supreme Court majority judgment is strictly adhered to. All demands for reforms are legitimate and must be entertained and addressed to the extent they do not in any way undermine that order. Subsequently, any demands that seek to undermine that order are null and void to the extent they undermine the order.

I have heard the argument that demands for reforms are the irreducible minimum because the Supreme Court ordered that the repeat election be had ““in strict conformity with the Constitution and the applicable election laws”. This is true, provided that only the Supreme Court can determine whether the fresh election has been organized and conducted “in strict conformity with the Constitution and the applicable election laws” , not any other actors.  Therefore, if there are fears on the part of anybody or any-body as to this conformity by the IEBC, such fears must be presented in Court before or after the elections. It is on this basis that Ekuru Aukot went to Court and got a favourable judgement in line with the Constitution.  If the judgement entered in the matter of Ekuru vs IEBC & three others would have had to be entered after the elections, it would have been sufficient to cause another nullification of the Presidential Election to the extent that the exclusion of the Petitioner and the other candidates would not be ““in strict conformity with the Constitution and the applicable election laws”. Thus, the only legitimate streets (pun intended) towards enforcing electoral reforms and the said conformity are the Courts. No others.

I have consistently said that the IEBC is the only body mandated by the Constitution to conduct elections in Kenya. It may not be a perfect body but it is the only body. They may not be perfect elections but they must be IEBC elections and for the purpose of order 405(iv) in Petition 1 of 2017, they must be held before midnight of November 1st 2017.  The Supreme Court is completely seized of this fact and therefore addressed itself directly to the IEBC in order 405 (iv). That position is and will remain the truly irreducible minimum in relation to the 2017 Presidential election, with the full force of law to boot! Only the Supreme Court can ammend, stay or vacate this order.  Consequently, all other minimums are reducible and subordinate to this one. We must address those other minimums, not to vacate this order but to enforce it sine reservatio.

Therefore any “political analysis” that seeks to skirt around this issue or to contradict the law by suggesting that there is any other irreducible minimum besides the Supreme Court Order 405(iv) is misleading, dishonest and void to the extent of that contradiction. Electoral reforms are necessary even urgent, but a fresh election on or before midnight of 1st November 2017 as ordered by the Supreme Court is the truly irreducible minimum.

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