Is Raila Odinga’s expected petition weighty enough? Or is it a case of a sore loser? Human rights activist, law professor and politician Kivutha Kibwana counsel on Azimio Petition (expected) of the declared presidential results in the 2022 Kenya general election raises the lid on pertinent questions, even as Kenyans debate on whether to move on from the election or entertain Odinga’s challenge.
Who is Kivutha Kibwana?
Professor Kivutha Kibwana is the outgoing Governor Makueni county. Having initially declared interest vie to be the 5th President in Kenya’s 2022 general elections, Prof Kibwana shelved his ambition in support of the Azimio La Umoja One Kenya Alliance candidate Raila Odinga. Before joining politics in 2002 as the elected Member of Parliament for Makueni Constituency, Professor Kivutha Kibwana worked in the University of Nairobi, as an Associate Professor (1977-2002), Dean of the Faculty of Law, a senior lecturer and chairman of the Department of private law. He has also served the Republic of Kenya as Minister of Defense, Minister of Land and Settlements, Minister of environment & Natural Resources and also as advisor to Kenya’s 3rd President the late H.E Emilio Mwai Kibaki. In 2022 elections, Kibwana, who was vying on a Muungano Party ticket lost his bid to be Makueni senator to Wiper candidate Dan Maanzo, who was his student at the University of Nairobi. The two-term governor garnered 59,034 votes against the Wiper candidate’s 177,273 votes. He is on record publicly questioning the results of this election. (see point number 14 below)
Kivutha Kibwana: Possible Factors For Consideration As Input Towards The Decision To Petition Against The 2022 Presidential Result
Azimio has the constitutional and legal right to PETITION at the Supreme Court against the declaration of H.E. William S. Ruto as President-Elect after the 9th August 2022 election. In ultimately making this decision, the following points, among many others, should/could be considered:
- Are there sufficient and weighty legal and factual grounds to warrant the petition?
- As the election campaign progressed including at the stages of tallying and verification of presidential results, did Azimio or observers or other non-partisan stakeholder s raise the question of electoral malpractices so that the country was put on notice that the elections were not on course and unlikely to be free, fair and transparent?
- At different occasions, the commissioners announced verified presidential results including by the Vice-Chairperson. Such results were also posted in the IEBC portal for public consumption and media dissemination. During that period, did any commissioner challenge the veracity of the above posted and communicated results?
- Was there material differences between the presidential results declared in county X and the total results for all MCAs in the same county, as well as the cumulative results of MPs, County Women MPs, Senators, Governors in the given county X?
- Did presidential agents at the polling station challenge the declared results and seek a recount? If so, was such recount denied?
- Did the majority of election observers dispute the poll results and return a verdict of unsatisfactory elections?
- Is it factual that the four dissenting commissioners went along with the chair, IEBC but upon the final result revealing a specific winner, they changed their mind and tact and sought to use their majority status to try to alter the result so that none of the two leading presidential candidates would achieve the constitutional threshold for victory? Or is the above incorrect?
- Has there existed a schism between the initially appointed three commissioners and the second instalment of four commissioners who took office as the 2022 elections approached which could have influenced the conduct of elections? In case there are two commissions in one, how would this affect a judicial petition process?
- Did the bureaucracy of the IEBC positively or negatively contribute to the final electoral result? Did any stakeholder raise any issue regarding such secretariat? If so at what stage?
- Did the cumulative presidential vote exceed 100 per cent by 142,000 or 14,200 or 1,420 or not at all? If by 142,000 votes, it would clearly mean no presidential candidate garnered 50% plus 1 of the cast votes including invalid ballots. From the declared results, the President-Elect acquired the constitutional threshold by approximately 69,000 votes.
- Did each of the two leading presidential contenders maintain their 2013 & 2017 strongholds? (For WSR his strongholds with the President). Did any of the two raid into the stronghold of the other? Did each ensure that voter turn-out in their stronghold was robust? Did the coalitions that each of the leading candidates crafted influence electoral outcome in their favour or not?
- How strategic, well-resourced, professional, forceful and spirited were the campaigns that both candidates mounted so that such campaigns could elicit large and dedicated following?
- Were there good reasons to postpone elections in some counties and constituencies agreed through the consensus of the entire commission and if not, did this postponement affect the presidential results?
- Did the kiems kits failure especially in Makueni county and the attendant manual voting in any polling station countrywide affect the electoral results?
- If the Supreme Court was to annul the presidential result, could it also find fault with the President Elect or the IEBC or the chairman or any other actors of consequence? Could the verdict then be a repeat poll with or without the President-Elect? If the repeat ballot features the two leading contestants, is there a possibility that the mood of Kenyans would be to side with the President-Elect so the county can move on or would the country side with Baba? Could the initial declaration influence Kenyans to henceforth settle the matter more conclusively or not?
- In 2017 the Supreme Court found reason to annul the presidential election. Unless there is cogent evidence of massive electoral fraud or failure, is the Supreme Court in 2022 likely to vacate the presidential results to pave way for a second sequential run-off? Or is the Court likely to be conservative so as to avoid establishing a precedent that Kenya’s electoral system and hence democracy are in shambles? Or will the Supreme Court be inspired to act differently?
- What is the strategic interest and expectation of the international community and our African neighbours in this matter? Is there hesitation about congratulating the President-Elect?
- Even if it were to be conceded that the President-Elect deserves his announced victory, how does the country deal with the fact that those who cast votes for both the two political giants are about equal in number? And that there is one third of registered voters – about 33.86 percent who chose not to vote? (not to mention some millions eligible but unregistered voters).
- How will the resolution of the electoral question impact on our incremental democratization, peace and stability, and economic revival? Is it possible to achieve a hybrid of Baba’s third economic liberation and the Chief Hustler’s Bottom-Up economic miracle given peoples’ expectations are as high as the cost of living and youth disempowerment is rock bottom?
- In the ensuing possible legal and political drama, will Wanjiku’s Article 1 interests be held paramount ?
By Kivutha Kibwana