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Kenya: What parallels for Zimbabwe?

13/09/2017 00:00:00
by Seewell Mashizha
 
 
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WE live in engaging times in which many of us watch for end-time symptoms. Eschatology, more than ever before in recent times, has become more insistent. Some will say Armageddon is nigh.

What with America, the world’s self-appointed god on earth threatening to unleash such power as has never before been seen! Yet, humbled by the enormous force of Hurricane Irma, this god on earth did shake  with fear and become exposed as being no more than an ebullient bully quivering in awe before an unimaginably more superior force.

Now we know, as Shona folk lore has always taught, that the famed horns of the owl are no more than protrusions of feathers. And the clueless Donald Trump had no rejoinders this time. We regret that there are many in Florida and elsewhere caught in the cross-fire, willy-nilly, but inexorably poetic justice always has its day.

In a recent article occasioned by Hurricane Irma, Niles Niemuth Irma is a mass event affecting the lives of tens of millions of people. But more tellingly observes:

  • Both Irma and Harvey before it have revealed a country driven by social inequality, plagued by decaying infrastructure and presided over by ruling elite that acts with criminal indifference when confronted with the basic needs of society.

 Amazing! This is the wonderful United States of America, a country that habitually reserves all the superlatives one can think of for itself.

Who could have imagined the abysmal state of infrastructure that Niemuth speaks of? The consistency is disheartening. Hurricane Katrina in New Orleans seems to have been a template for US administrations. To disguise America’s inherent inadequacies, there will be more rantings against North Korea.

Meanwhile, the Supreme Court judges of Kenya have explained their decision to nullify the recent Presidential election there.

The decision appears to have been based on what the four judges who voted for nullification saw as a discrepancy between the electronic vote numbers and the polling station tally of the same votes.

Understandably, Uhuru Kenyatta’s lawyers have called the decision a political one given that no irregularities have been cited by Raila Odinga party. Tellingly, the acronym for this political formation is NASA. The pun between this NASA and the American one is probably intentional.



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Where America is concerned, the acronym NASA stands for National Aeronautics and Space Administration while Kenya’s NASA stands for the National Super Alliance political grouping which is currently gloating over what they are calling a historic decision in the country’s highest court.

However, two of the Kenyan Supreme Court justices that presided over the election petition and dissented from the judgment. Justice NS Ndungu and JB Ojwang disagreed with the other four justices who held that that the August 8 election had not been conducted in accordance with the Constitution of Kenya.

In his dissenting opinion Justice Njoki Ndungu observed:

  • The Court has rendered its Judgement by a majority. I am however, of a different opinion. At the heart of democracy are, the people, whose will constitute the strand of governance that we have chosen as a country. On 8th August, 2017, millions of Kenyans from all walks of life yielded to the call of democracy and queued for many hours to fulfill their duty to our Republic by delegating their sovereign power to their democratically elected representatives. This was an exercise that was hailed by many regional and international observers as largely, free, fair, credible and peaceful. That duty stands sacred and is only to be upset if there is any compelling reason to do so. That reason must affect the outcome of the election

 

Justice Ndungu amplified his decision to dissent by stating that the petition revolved around three fundamental questions which were:

  • Whether the election was conducted in accordance with the Constitution and the law.
  •  Whether there were irregularities and illegalities committed during the conduct of the election, and
  • If there were irregularities and illegalities, what was the integrity of the election?

 

His conclusion regarding the three issues, was that the election had indeed been conducted in accordance with the Constitution and the law.

To further amplify his views Justice Ndungu said in any election, the ordinary Kenyan voter will want to know whether there was a problem with registration of voters; whether voters were properly identified at the polling station; whether voters were allowed to cast their ballots peacefully and within good time; and whether the votes were cast, counted, declared and verified at the polling station to the satisfaction of all parties.

If the answers to all these questions were in the affirmative, the judge concluded, then the election will have been conducted properly.
In the summary of his dissenting opinion Justice Ojwang expressed the following views:

  • That the petition, which sought the annulment of Kenya’s Presidential election results emanating from the General Elections of 8th August, 2017, was focussed on a limited number of contentions: (a) that the said Presidential Election was not conducted in accordance with the relevant principles of the Constitution;  (b) that the said Presidential Election was compromised by certain illegalities and irregularities;  (c) that, consequently, the said General Election lacked integrity, and ought to be invalidated.

 

  • That whereas the substance of the case founded on illegality and irregularity rested on the voting-results electronic transmission process, there was substantial information showing that, by law, the conduct of the election should have been mainly manual, and only partially electronic. There was hardly any conclusive evidence demonstrating such a manifestation of irregularity as to justify the invalidation of the election results.

 

Justice Ojwang concluded that much of the evidence which the majority opinion adopted was largely unascertained, apart from standing in contradiction to substantial, more credible evidence.

What recently happened in Kenya might possibly have a bearing on Zimbabwe’s impending elections of sometime in 2018.

That Raila Odinga and Morgan Tsvangirai are more than partial to each other’s interests is perhaps not such a moot point given the evidence of camaraderie between the two.

Odinga’s current party is the National Super Alliance (NASA) while Tsvangirai has been at pains to come up with some kind of alliance. The result of his quest is the MDC-T Alliance.

Following the disputed election of 2007 in Kenya the subsequent settlement guaranteed Raila Odinga the post of Prime Minister.

When in 2008 Zimbabwe went through a similar experience including widespread violence in the period preceding the Presidential run-up, Odinga said some very uncomplimentary things about Robert Mugabe. This was in sync with the utterances of Tendai Biti then Secretary General of the MDC-T who led the chorus about a stolen election.

Later Biti changed his tune and posted figures on the MDC-T website that more or less tallied with the official figures released by the countries electoral commission.

Biti and others then went to Kenya to share notes with Odinga. Not surprisingly, in the negotiations that created Zimbabwe’s GNU of 2009- 2013 the MDC-T negotiated into the settlement the post of Prime Minister which, of course, went to Morgan Tsvangirai.

They also demanded (and were acceded to) such key ministries as Education and Finance. When Tsvangirai was being feted in the West as a democrat of note and getting dubious awards to bolster his image in the GNU, Tendai Biti was being hailed as the best Finance Minister in Africa.

The MDC formations in the GNU became too comfortable in the corridors of power and forgot to perform and stamp their excellence on the minds of the electorate. They concerned themselves with scoring petty points in parliament and in the media while ZANU-PF put its ear to the ground and went into election mode almost immediately after the inauguration of the inclusive government. The constitutional outreach programme fired warning shots that were not heeded ahead of the 2013 elections. Many of the critical submissions were, in actual, fact ZANU-PF positions.

This is not to deny that the MDC formations contributed substantially to the country’s new constitution. The elections of 2013 kicked two of the GNU partners out of Government and gave ZANU-PF a two-thirds majority which the party could have used to advantage, but has generally not done so.

Instead, the constitutional alignments that were agreed upon have in the main been faithfully adhered to and effected. Significantly, Tendai Biti later admitted that the MDC formations had simply been outfoxed. Whereas they had gone for sophistication in their campaign, ZANU-PF had had a simple message for the people: what the party was promising to do if elected to power.

In 2011 the Movement for Democratic Change (MDC) faction led by then Prime Minister Morgan Tsvangirai had Kenyan Prime Minister, Raila Odinga, attend its third national congress as guest of honour. The unspoken partnership and tutelage is there for all to see.

Thus, Tsvangirai applauded the nullification of the Kenya Presidential election and spoke of a possible repeat in Zimbabwe.  Should that happen, will the court ruling translate into votes? Again, Kenya will be instructive.

 


 
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