After the Election: Tranquillity through the Courts

What next after the Kenyan Presidential Election? This Interview with election law Expert Steve Ogolla was conducted after the election day, but before the declaration of results by the Election Commission IEBC.

RoGGKenya: Is it correct to postpone the election in Nyanza counties indefinitely, as of today, Saturday, Oct 28, 2017?

Steve Ogolla: That is doubtful. If you look at Sec 55 B (2), it says that if the election in a constituency has been postponed, in this case for security reasons, the election at this place “shall be held at the earliest practicable time.” Today was certainly the earliest time, but was it really practicable, when the emotions are still raw and people feel deeply divided and deeply disappointed because they care about the presidency. It was obviously not practicable today.

But what we can expect anyway, is that the IEBC chair declares the results today, because results from Nyanza in the four counties that have not voted would not alter the overall outcome. This is according to Section 55B (3) of the Elections Act.
(Note: more details about this in another interview with Ogolla)

RoGGKenya: And then? The country is deeply divided, the opposition NASA is still saying that the election was not free and fair.

Ogolla: We are an emerging democracy, but still in a rule-of-law country. The rule of law requires that after the elections we document everything that one side may think was part of a fraudulent process. The proper place to challenge the outcome is the court. That could preserve national tranquillity as we determine the way forward.

RoGGKenya: Was this election legal?

Ogolla: This is the other issue which the opposition completely refused to accept: The legality of this election was never in doubt, in so far as it had, according to the constitution, to be conducted within 60 days after the nullification of results. And that order was not vacated by a court of law. So, you may have had problems with it, you may claim fraud and falsification. But this is not the same as challenging the legality. But now, after the Presidential election, the opposition may challenge the legality of the results – in court only.

RoGGKenya: Going to court is risky. One might lose.

Ogolla:  But It is better for unity and peace, to move the matter from the political spaces to the courtrooms to decide. If instead a narrative remains and is told in public spaces over and over again, that the result of the election is discounted, that would, in turn, exclude the supporters of Kenyatta and Jubilee and cause division. We can be happy that we have a strong and independent judiciary at that level which has already nullified a Presidential election result. Any outcome of a new petition of the opposition should be deemed to be credible and accepted by the one who loses the case.

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