National dialogue is lost, Uhuru announces an underwhelming politicised cabinet, Odinga insists on being sworn in as parallel president, none of his co-principals turn up, the (mostly imaginary) NRM is banned, the media are muzzled and minor politicians are arrested and charged with treason. Not Kenya’s best two weeks.
Meanwhile, the August 2017 election war carries on, not just in the debate over NASA’s bogus election results, but also in the petition courts. This post will look at where that battle stands and what we have learnt so far about the conduct of the August election.
Firstly, and most importantly, the procedural anomalies and issues which led the Supreme Court to annul the presidential election have not cascaded down to the Governors, Senators and MPs. Not a single member of the National Assembly or Governor has had their election annulled primarily as a result of issues with forms being unsigned, different paper being used, unstamped copies, different results being used electronically to the paper system or concerns about the display portal’s integrity. In fact, although they make references to it, judges appear to be disregarding the SC’s position as they make their judgements, with positions such as "The minor failures on Form 37A and 37B had no substantive effect on the outcome of the August 8 governorship election,” [Lady Justice Mary Kasango]
Judges are taking the view that specific allegations need to be made about malpractice in specific electoral areas to justify a review, and that adequate evidence of irregularities would lead to a recount of the affected areas, after which the matter would be settled, not to the election being annulled and a new poll (as the Supreme Court decided). And their focus has been almost entirely on the paper forms.
The only elected MP, Senator, Women’s Representative or Governor to have his or her election annulled so far has been the Wajir Jubilee Governor (Petition No.14 in Nairobi). As well as faking his degree papers, there were numerous IEBC issues including no records of assisted voting, ballot boxes reopened after sealing (to get the official results out) and extra lines written into the form 37C without obvious origins, as well as the wrong forms used and no available originals and Presiding Officers failure to sign forms.
That’s’ quite a vote of confidence in the IEBC’s operations. So far.
So what are the statistics saying? Beginning with the governors, there were originally 35 petitions raised by losing politician or voters against the results of the august elections:
Of those, five have been successfully withdrawn, four were dismissed on technicalities such as failure to pay the appropriate fees in time, and eight have been heard but dismissed. This includes the significant but expected victory of Alfred Mutua in Machakos today and the recent dismissal of the petition against Taita-Taveta Governor Samboja on the unusual grounds that he was already accused in criminal court of faking his university degree. One petition (Wajir) has been successful, and 17 are still running. In two cases (Marsabit and Mombasa), the courts refused to accept the petitioner’s withdrawal and have insisted the case continued nonetheless.
Of these 17, 6 are against the 26 remaining Jubilee governors and their allies and 11 against the 20 pro-NASA governors. NASA therefore still has more to lose from here on (though I doubt many of the petitions in their homelands will succeed, as the various recounts and scrutiny exercises across the nation have turned up virtually no malpractice and only minor tallying errors). Overall, I would not expect more than 2 or 3 more governors to fall to petitions (plus Samboja , if convicted).