allAfrica.com: Kenya: Fresh Elections Must Be Held to Stop Anarchy (Page 1 of 2)

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.

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