Karim Anjarwalla
14 January 2008
opinion
The furore over the recent presidential elections and the blood-letting that has followed are the clearest demonstration, if any were needed, that for a democratically elected leader to be legitimate, his election must not only be fair but must be seen to be fair.
Both the Party of National Unity and the Orange Democratic Movement allege that certain constituency results were irregular. Bizarrely, therefore, when they seem to disagree about everything else currently, on the most fundamental of points there would appear not to be any disagreement between these protagonists that the election was not entirely fair.
The only difference between them is that ODM believes that the irregularities have affected the outcome of the presidential election, while PNU presumably believes that such irregularities have not affected the outcome.
Recent revelations by the chairman as well as other commissioners of the Electoral Commission of Kenya also make it apparent that the ECK itself had serious doubts about the regularity of the vote tallying process before announcing the results.
It is worth emphasising that for any person to be president, he must be elected in accordance with the constitution and the National Assembly and Presidential Elections Act. A person "elected as president in accordance with" the Constitution assumes office as soon as he is declared elected.
The taking of the oath, whether held in pomp and glory as is customary or in the rather shotgun wedding method adopted by President Kibaki, while necessary in order for the president to perform his functions having been elected, is not a prerequisite to his election as president. There is no magical power or privilege that emanates from the taking of the oath.
The election of a president can be challenged on a number of grounds, including if any person alleges that the president was not "validly" elected president.
But what of the political landscape in which the second Kibaki presidency is expected to function? These are the facts:
THE PNU HOLDS 43 SEATS, JUST OVER 20 per cent of the seats in parliament, with 18 of these seats being in Central Province and only 25 seats in the rest of the country. Significantly, it has no seats in Nyanza Province or North Eastern Province.
ODM holds 99 seats, just under 50 per cent of the seats in parliament, with seats in all provinces other than the Central and Eastern Provinces.
Nearly all former Cabinet Ministers lost their seats in parliament, in most cases to persons who have never previously been MPs.
In a number of PNU strongholds, PNU lost to other smaller parties, for example in Nithi.
Based on current results, voters in six provinces out of eight preferred Raila Odinga over President Kibaki.
If President Kibaki intends to appoint as many ministers and assistant ministers as he did in the previous parliament, then even if every PNU MP were to be made a minister or an assistant minister, there would still be several vacancies. So President Kibaki will presumably have to form alliances.
Without a formal alliance with ODM and assuming President Kibaki intends to respect the law and in particular the provisions of the National Assembly and Presidential Elections Act, which require the consent of the party to the appointment of any person from any party other than the president's own party as a minister in the government, President Kibaki will have to form alliances with a group of minor parties and even then it is unlikely that he will garner a working majority in parliament.
So, at a time when this country is crying out for decisive leadership and a healing of the deep scars of partisan and ethnic division, President Kibaki holds a mandate which on any basis is tenuous - his very election is in question, the electorate in six out of eight provinces preferred Raila Odinga, his party has been humiliated at the polls and a further political crisis is only days away if a vote of no-confidence succeeds when parliament is in session.
ONE COULD HAVE EXPECTED MORE humility from President Kibaki in his inauguration speech, an explicit recognition of the defeat his party suffered and what this means for governance and government going forward. Instead, he barely addressed the issue and presented himself as a president who has just been elected with a thumping majority.
This has not helped to assuage the pain felt by millions of Kenyans who believe, rightly or wrongly, that the result of the presidential election was wrong.
Many who voted for President Kibaki may well ask why his election is so tainted, why, by the admission of Samuel Kivuitu, the chairman of the ECK, the ECK was put under so much pressure to release results, why Samuel Kivuitu is unable to even confirm that President Kibaki was legitimately declared the winner of the election, why his inauguration seemed so much like a pre-scripted event.
The decline into a police state has been so swift and so organised that one can be forgiven for thinking that some within the may have actually anticipated this chaos. The sight of the chairman of the ECK being escorted away by GSU officers and being closeted in a sealed room to read results, the massive show of force at the KICC and the expulsion of the free press before the announcement of the results are reminiscent of a dictatorship, not a democratic government.
Can it now be seriously argued, after all the death, destruction, violence and bloodletting, that a speedy release of results was more important than accurate results?
Let it be clear that, as a matter of law, it was open for more time to be taken for the results to be more carefully considered. No constitutional crisis would have occurred as a result and no law would have been breached.
The ECK's mandate is to "take the necessary measures to ensure that the elections are transparent, free and fair" in addition to a specific obligation to "confirm" the counting and tallying of votes. In light of the irregularities that were pointed out before the results were released (and which have also been highlighted by the various observers' reports since then), the ECK should in fulfilling its mandate have taken more care with the counting and tallying of votes and taken every step to avoid the manifest irregularities that have occurred.
And now we have admission after admission by the chairman of the ECK and some commissioners. Whether it is a case of consciences being pricked at the sight of blood or for whatever other reason, it is now obvious that the ECK did not fulfill its mandate.
That of course calls into question the validity of the election of President Kibaki. It should also be noted in passing that as a legal matter, if it is demonstrated that the results leading to President Kibaki's election were tainted by fraud, then the election would lack all legitimacy.
All Kenyans should be angry with the way things have turned out. It does not matter who you voted for. All who voted accepted the principle that our votes would be fairly counted. We all accepted the principle that, on a fair count, the candidate we voted for would either win or lose.
It is these basic principles that have been flouted and this is why so many Kenyans are so disgusted at our political system and why so many have taken to the streets.
IT IS SIMPLY UNTENABLE FOR President Kibaki to take a legalistic approach to this matter and ask for a court to resolve matters. These are first political problems and politicians should deal with them. To ask a court to resolve the impasse is simply to pass on the buck and to avoid responsibility.
Offering a government of national unity is not an offer of compromise, since PNU does not have a working majority in Parliament in any event. The essence of a compromise is giving up something in exchange for something else. In offering a government of national unity, President Kibaki is making no concession since PNU must form such a government in order to attain a working majority in parliament.
Our leaders must work towards a credible political solution that appears legitimate to the vast majority of Kenyans. This must come first. Appropriate court proceedings can follow if necessary to give the political decisions the cloak of judicial legitimacy.
But getting to a political solution requires some clear thinking and a dose of realpolitik on all sides. President Kibaki must now understand that to be president of Kenya he must be seen not as a tribal chief but as a leader of the vast majority, across tribal lines.
President Kibaki will remain president unless he is legitimately removed, chooses to resign or loses a subsequent election following a vote of no-confidence. Raila Odinga must, in the interest of national cohesion, accept this.
Raila Odinga believes that a conventional election petition is unlikely to achieve a political solution. In this, he is probably right. The state of Kenya's judiciary and the overriding influence of the executive in judicial decision-making would suggest that any reference to the judiciary could be politically compromised. In any case, there is substantial legal uncertainty about whether an election petition is the appropriate method of challenging the ECK's failings.
PRESIDENT KIBAKI KNOWS OR SHOU-ld know all this but it is convenient for him to pretend otherwise. Any attempt through any means to recount and re-tally will simply cause further chaos, with allegations and counter-allegations and no meaningful resolution.
President Kibaki and Raila Odinga have one legitimate choice open to them, in the interests of national cohesion and in order to arrest a slide into anarchy. Fresh elections must be held within a pre-agreed period and within a short period of time, not exceeding one year.
These elections must be conducted by a new ECK, assisted by neutral foreign election monitors. Such a political settlement can be recorded in a framework agreement under the auspicies of the international community and, in particular, those working to a mediated solution, such as the AU, the EU and the US.
Karim Anjarwalla is a leading corporate lawyer in Nairobi.
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