The looming constitutional crisis

 

Prof. MUTAHI NGUNYI

This election is a slippery one because of a playful and incompetently drafted constitution. For instance, the date of the election is cast in stone. If the ballot papers are not ready by August 8, the election cannot be held on any other date.

And this is probably what Nasa leader Raila Odinga wants. If the courts cancel the tender for the printing of ballot papers, there will be no election. A hard constitutional fact! The only way out is a caretaker government.

If Raila uses the courts to sabotage the printing of ballots, therefore, it is because he wants a caretaker government. Period! But this is not the only worrying scenario in this election.

In case of death of a presidential candidate or his running mate between now and August 8, the election stands cancelled and a fresh one called in two months.

For instance, if a presidential candidate commits suicide on August 7, the election will be cancelled and a fresh one called for October 7. And since we have one suicidal presidential candidate, this scenario is probable.

My worry, though, is not the presidential candidates. It is the running mates. And I am not talking about William Ruto or Kalonzo Musyoka. These are safe! My worry is the others whose names we cannot remember.

If any of them dies on August 7, the election is cancelled. Another hard constitutional fact! For instance, if Dida’s runningmate in 2013 was beaten by a dog outside his Kibera shack and died, the election would have been cancelled.

It is that simple. This is why the government should give tight security to the independent presidential candidates and runningmates. As for my political science student at University of Nairobi in the 1990s, Solomon Gichira, we must stop him from attempting suicide again.

After the courts allowed him to run for president, he is now a national security threat. In fact, Interior Cabinet secretary Joseph Nkaissery should secure him with a battalion of military men, not policemen! And on this point, I am not being funny.

Now I will ask the country a few questions. After you vote on August 8, when do you expect to go back to work? On August 9 or there about? Zero! This election has potential to spill over to mid-2018.

And this is a hard constitutional fact. In fact, after August 8, we have no idea what the country will look like. Consider the following: One, on August 8, Uhuru Kenyatta becomes the temporary president.

This is a new concept in the Constitution. A temporary president is half a president. He cannot fire anyone, even if they sabotage his government from within. But fundamentally, he cannot deploy the military to quell the kind of violence we had in 2007.

This can only be done with the approval of Parliament, which will have been dissolved on August 8. If we have violence on August 10, for instance, the military cannot intervene.

Why this is worrying is because in 2007, the violence stopped when the military swung into action. We do not have this luxury. And the question is: Who benefits from such paralysis? The answer is obvious: Raila. He will use this paralysis to force a coalition government if he loses. More so, if there is violence like in 2007!

And the second reason why we are headed for a prolonged and tense post-election period is that every stage of this election will be contested in courts of law.

The first round will be contested, and if we have a run-off, its results will also be challenged in court. And these contests do not have to be done by the candidates. I am sure activists will file multiple petitions, even for nuisance value. If this is true, then, the earliest we can swear in the new president will be Tuesday September 12.

And this is the best case scenario in which one of the candidates gets 50 per cent plus one and the Supreme Court rules that the election was valid. This is the scenario that obtained in 2013.

In my view, Raila will do everything possible to ensure this does not happen. In fact, he has worked for the last four years to ensure this does not happen.

If he will not get a caretaker government or a forced coalition becomes impossible, a run-off is his best bet. But what does a run-off look like? If we have a run-off, the earliest the new president will be sworn in is November 14.

For 100 days, we will be in a state of political suspense with Uhuru as temporary president, with no powers. In the meantime, the economy will begin to react to the suspense and political tension. And even then, tension for 100 days is not a disaster. This is actually a Christmas picnic. More so because we could face worse circumstances than this.

Let me explain. Should we have a run-off, it will happen on October 5. And this is because a petition contesting the first round of election will delay the run-off. The results of the run-off will be announced on October 12.

And this will definitely attract a petition by October 19. If this happens, the Supreme Court will make its ruling on November 2. The ruling will have two possibilities. One, that the run-off was valid; or it was invalid.

If declared invalid, then a fresh election will be held 60 days after November 2. And this takes us to January 2. In sum, January 2 will become the new August 8. All the dramas we have experienced in this election will start afresh on January 2.

What is more, they could run all the way to June next year. And this is a hard constitutional fact! What is my point here? There is a concept in law known as cui bono which states that “If you get to a crime scene, you must start by asking ‘…who benefits from this crime?’”. Once you identify the primary beneficiary, you will identify the killer.

And we must use this principle to analyse our constitutional confusion. We must ask the question: Who benefits from it? Once we identify the beneficiary, we will identify the engineer of the coming confusion.

And the beneficiary is Raila! Put differently, the options for Raila are two. One, to force a caretaker or coalition governments. But this will require violence, which Raila would want to avoid.

The second option is to force a constitutional coup. In this option, he will force a protracted petition in which the Supreme Court has no choice but to nullify either the first round of election or a run-off! To achieve this result from the Supreme Court, what Raila needs to do is to mis-engineer the election in selected areas.

This way, he will collect compelling evidence that will force the Supreme Court to nullify the first round of the election or the run-off. And with this, the 100 days of election suspense will turn to six months.

The six months will turn to one year. The economy will respond. And without violence, a coalition government will happen to stop this constitutional madness! In my view, this is a typical Raila plan. But I could also be wrong!