Recent Election Thefts in Kenya 1992-2007 MJRainy, TEAA 1964-67, Kenya resident 6 Jan 2008
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Kenya has been our home by choice since 1965. During that 42 years we have seen lots of challenges to the 1964 promises of freedom for Kenyans and its residents. Judy and I would like to share some thoughts on what happened to Kenya after the polls closed on the evening of 27 December, 2007. We may not be able to explain the causes of a blowout that has now claimed hundreds of lives, particularly since it was declared at 1800 on 30th Dec that Mwai Kibaki had beaten Raila Odinga by a margin of 231,728 votes, and he was hastily and unconstitutionally sworn in for a second term in a ceremony that could only be witnessed television a small television crew. In the week that has followed Kenya has experienced a major political convulsion. Many pundits have already concluded that it will never be the same again and that the light of the Democratic process has gone out in yet another sub-Saharan African country. Until Kenyan troubles had featured for a week in the international media, most of us here had been blissfully unaware that our country rated so high in international expectations. For us the lights of progress did not suddenly go out. Rather, they dimmed significantly for yet another time. We expect they'll go on again. But we also expect to see more flickers. During such blackout we think it may be useful to share with you our thoughts about what it may mean in the short and long term for Kenya.
Not Kenya's First Stolen Election
This was not Electoral Commission's Chairman, Samuel Kivuitu's, first rodeo. We well recall a similar two-day delay in the returns for the 1992 election, which was the first multi-party election that Daniel Arap Moi faced, and which was fatally flawed by a 48-hour delay in announcing results when it looked for awhile that Kenneth Matiba had beaten Moi, but Kivuitu announced victory to Moi without any real documentation. We were suspicious that there might be a repeat of a massively rigged election when Kivuitu was sworn in again as ECK Chairman only days before the December, 2007 poll. The 1992 elections were the first that were attended by widespread ethnic clashes, particularly in the parts of Western Kenya where Kikuyu settlers had taken up land vacated by colonial settlers. Indeed, the mixing of ethnicities which is a hallmark of freedom has been used by Kenya's ruling elite to maintain the fear that justifies dictatorship as a consistent theme of our heavy-handed governments. Five years later in 1997 ethnic violence was much more widespread and so dramatic that both Dartmouth and Lewis and Clark Colleges relocated their long term study abroad programs to more tranquil African pastures. Judy and I still marvel that Dartmouth chose Zimbabwe! By 2002 Moi's rivals for power rightly concluded that they would have to form a coalition in order to defeat the "Professor of Politics". Prior to that important milestone the country had gone through a two and one half year process of drafting a modern constitution that included a clear bill of rights for Kenyans and also held the promise of dual nationality for folks like us as well as the tens of thousands of Kenyans who have become part of the so-called diaspora. They are, and will remain, a very important source of cultural transformation as well as important sources of repatriated money to pay for this transformation. Note here that Kenyans willingly take on "foreign" identities to realize their deepest hopes. It is important to point out that Barack Obama is a huge role model in this direction. Many people here only partly joke that Barack will be the first Kenyan/Luo president.
The Second Stolen Election 2002
For technical reasons the Draft Constitution could not replace the colonial original. But Mwai Kibaki promised that his coalition government would ratify it within 100 days. That constitution had been drafted by Kenyans working with a Kenyan professor of constitutional law based in Hong Kong, Y. Gai, who had drafted the Hong Kong Constitution and would later do the Afghan Constitution. It was well crafted and left important details to Parliament to work out later. Its most important, but controversial, section called for a more ceremonial president and a British style Prime Minister elected by the Parliamentary majority. In the run-up to the elections, Mwai Kibaki was in a serious car accident and during recovery he had a stroke. But Raila Odinga supported him with a single word, "Kabaki tosha" - Kibaki is enough. That would have been so had the group that combined to defeat Moi been really able to share the responsibilty of power and leadership, but instead Kibaki became a front man for the so-called Mt. Kenya Mafia and an entrenchment of ethnic politics at the highest levels. Ratification of the new constitution was put on indefinite hold and grand corruption thrived, even as the British High Commissioner accused Kibaki's cronies of "vomiting on the shoes" of the donors. Even so, with the great hippo that was the Moi regine shifting weight to Kibaki's on the backs of Kenyans, its economy clearly rebounded. Cell phones became the life blood of our communications system. For the first time in decades money was available for education, roads, and improved health services. For the first time it came from the taxes of hard working Kenyans. Not just Donor handouts. We paid more and so expected a lot more. This greatest achievement under Kibaki was to make much of government expenditure financed by improved tax collection through a more efficient Kenya Revenue Authority. But this very success sewed the seeds of a return to self plunder of a top-heavy state. The NARC Coalition unravelled and Kibaki increasingly surrounded himself with ministers from the central Mt. Kenya tribes of Kikuyu, Meru and Embu. But they made for such bad publicity for Kibaki, that he suspended the most corrupt and announced that his government would provide a better constitution which Kenyans could vote for or against in a referendum that was held 1000 days after his election. It was the coalition around the orange symbol that led to ODM, the so-called Orange Democratic Movement. It was led by Odinga, Ruto, Ntimama, Balala, and all of the recently successful ODM players. They went head to head against Kibaki's new constitution which was symbolized by the banana. I don't think that more than a handful of Kenyans understood the contents of the new "banana" constitution, and since they didn't understand it, they voted overwhelmingly to defeat it simply because it was being promoted by Kibaki and his cronies who saw no need to include a bill of rights. Although Kibaki's position was roundly defeated in the constitutional referendum, he had a fail-safe guarantee of the presidential powers conferred upon him by the old constitution to simply ignore the results of the referendum. Once the voting period was over he gradually brought back all of his disgraced cronies. The deep disappointment shown by the majority of Kenyans who voted for real change in the 2007 elections to a great extent was because most Kenyans really thought that a stolen election was an impossibility in modern Kenya. All sort of precautions and procedures had been put in place to ensure that this was the case. Sources close to the international election observers stated flatly that only way that ballot boxes could be rigged was to have them loaded with false papers before voting started. They clearly didn't take into account the ECK Chairman, Samuel Kivuitu, who would simply not follow all of the procedures laid down. The best analysis I have seen on this subject is by dkipkorir@ktk.co.ke in yesterday's Saturday Nation. Kipkorir is an advocate of the high court and he carefully outlines the legal procedures that must be followed in each of the 27,000 polling stations before results can be announced in each of the 210 parliamentary constituencies. The key feature here is that ECK must provide all parliamentary and presidential candidates 24 hours to lodge complaints. If recounting or a re-tallying is required, ECK is obliged to do so within 48 hours. So by law all candidates and the ECK have 3 full days to resolve any disputes. Kipkorir states clearly:
With due respect to Mr. Kivuitu, it was irregular, unlawful, and void in law to announce the results on December 30 and to swear in the President on the same day. The ECK boss announced the results when he did not have the original verification Forms 16, 16A and 17A from each constituency. Kivuitu refused to allow the 24 hour period for candidates to lodge complaints, and he also declined to allow re-tallying. He told the world that his returning officers had gone underground and that he did not have powers to order re-tallying. On the day the results were being announced Special Gazette Notice number 12612 was issued declaring Mr. Kibaki the President. Mr. Kivuitu deliberately misled the world and subverted the law. Section 5 of the Constitution states that a president duly elected is the one who has the highest votes cast. The ECK can invoke its powers under the constitution to re-tally all valid Forms 16 and 16A and retract the results and announce the valid ones. The announcement of results on December 30th was a ministerial act that does not invalidate the ECK's constitutional powers . . . Thus Mr. Kivuitu must take the high road, invoke the ECK's constitutional mandate and review the forms and give Kenyans the president they elected, be it Mr. Kibaki or ODM candidate, Raila Odinga. The tough stands taken by ODM and President Kibaki's PNU are theatrics which will not help the country. Neither party has any constitutional mandate that is the ECK's monopoly. If he allows the status quo to stay, Mr. Kivuitu will one day be held to account for the bloodshed and property destroyed. The country's unity and future rest on his shoulders and he cannot pass the buck.
I have checked with Kenyan constitutional lawyers and Korir's analysis is sound. But while the responsibility belongs to Kivuitu, his commission is divided and in fact, he simply is a figurehead dancing to strings being pulled by more powerful and better positioned colleagues. Kivuitu himself has alluded to this, as he has been powerless to stop the continual submission of redrafted Forms 16 and 16A to remove the evidence of rigging. Thus time is on the side of the those who most benefit from the rigging. This is why Alfred Mutua who is the spokesman for Kibaki can arrogantly state that the government will not negotiate or share power with "losers." Kibaki has been captured by Kenya's hardliners. Ethnic loyalty is hardly a main consideration. Does anyone recall that in the months prior to the election that hundreds of so-called Kikuyu Mungiki who up to that time controlled the mass transport system in and around Nairobi simply disappeared after being rounded up by police on orders of the Kenya head of security Michuki. In the short term time is on the side of those who have succeeded in stealing an important Kenya election for the 4th time. But the convulsions which have pulsed through Kenya during this past week are clear evidence that Kenyans want meaningful change and control over what happens to their daily lives. As we conclude this, 7 days have passed since Kibaki's election was announced. It's a quiet Sunday again. Kenyans are gathering in thousands of churches to pray for peace. Muslim friends have confirmed that similar prayers for peace were spoken in many of our mosques. And the emphasis is now on action, rather than just more and more words. We are very pleased to hear that a team of Muslim medics has gone to Kibera to begin providing much needed medical relief to the many people injured there. As things get back to normal, and as wounds heal, the experiences of the past week should not be forgotten and should not dim the hope for better treatment of people, not just here, but everywhere. And let's hope that leaders who do not promote this end will not have a very much longer tenure anywhere. In hope beyond audacity, Mike and Judy Rainy
We'll try to keep you posted; it's a great help to know that so many of you really care and that so many are listening to what happens next in Kenya.
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