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Final lesson from Kenya


Now that the elections are over, hopefully the fever with its high drama, flaring tempers and tetchy emotions will subside, too. To conclude this election series, we once again take a leaf from the Kenyan election book to see how they are managing and carrying on in the aftermath, the deeply-divided 2017 elections and dramatic nullification of the presidential election.

guest column: MIRIAM T MAJOME

We discussed the stark similarities between Kenyan and Zimbabwean politics in depth, such as their constitutions and the Constitution-making processes after almost inimical numerous amendments to their respective post-colonial constitutions.

Zimbabwe narrowly avoided the nullification of the presidential election as happened in Kenya when Raila Odinga had approached the Supreme Court. For days after announcement of the results, Zimbabwe seemed set to follow the same path. However, this time it did not happen, much to the delight of some and chagrin of others. The Constitutional Court (ConCourt) dismissed Nelson Chamisa’s petition in which he had sought to nullify the election or alternatively be declared winner. The country is still reeling from the judgment, with the pro-President Emmerson Mnangagwa constituency accepting the results and calling for the country to move on.

Chamisa’s supporters continue to reject the results. They have even rejected the ConCourt decision. Their plan is not yet clear, but there are reports that they have taken the matter to the African Commission for Human Right. It is wellknown that the relief they are seeking, if it is granted, will not be enforceable so the move is probably a protest gesture only meant to achieve a certain political point.

Kenyan electoral challenge

Odinga challenged the election results in the Kenyan Supreme Court, alleging a litany of irregularities and electoral malpractices. One of the biggest bones of contention arose from the way the results were announced. The poll announcement pattern is more or less similar to Zimbabwe’s, where they were announced in batches. The earliest released results showed that Odinga was leading, but as more results were announced, Uhuru Kenyatta overtook him whereupon his followers did not take kindly to it, something also raised in Chamisa’s court papers. Chamisa alleged rigging on the same lines as Odinga.

The rest is history save to say things got nasty in both countries. The Kenyan court found that there had been many irregularities despite the election having being certified, as free and fair by even some usually respectable election observer missions. They were forced to make an embarrassing U-turn when the Supreme Court unanimously acknowledged the many irregularities and malpractices which invalidated the election results. In a judgment that shocked the world, the Kenyan Supreme Court nullified the elections and ordered a fresh poll.

Kenyatta and Odinga prepared to square off against each other again in yet another bruising plebiscite duel. Odinga persisted with his scathing criticism and allegations that the Independent Electoral and Boundaries Commission’s (IEBC) was biased. He insisted that the IEBC could not run a credible election until specific electoral reforms were made. He also demanded that certain individuals be removed from the IEBC.

He felt his demands were not met so he announced his withdrawal, saying he could not compete in another lopsided election, which he described as even worse than the previous election. Kenyatta went into the October 2017 election virtually unopposed and it ensured his presidency.

Endorsement and concession

Chamisa has refused to concede defeat, persisting with his claim that he won the elections despite the ConCourt ruling. Much weight is put on the importance of concession and admission of defeat by the candidates who lose elections, especially if it’s the biggest rival. A concession of defeat augurs well for endorsing the credibility of an election and to some extent, it endorses the legitimacy of the winning candidate. Refusing to concede defeat is undesirable because it increases the tension that naturally obtains in a closely contested election. A disputed election does not augur well for the peace and stability of a country.

Given the similarities between the two countries, electoral processes, it is little wonder that Odinga also stoically refused to concede defeat to Kenyatta. He maintained that he had been cheated of a win and he went on to declare himself the winner, much to the anger of Kenyatta. The government clamped down on Odinga’s supporters who started running street battles with the police, resulting in a number of deaths. An estimated, 34-37 Kenyans died in the violence as the police used a very heavy hand as well in the bloody clashes between the rival party supporters.

On August 1, Zimbabwe experienced its most calamitous election violence when seven people died at the hands of soldiers who opened live fire at unarmed civilians protesting against the alleged delay by the Zimbabwe Electoral Commission in announcing the presidential results.

Lessons for Zimbabwe

In May 2018, Kenyatta and Odinga finally came together and shook hands in a public show. They agreed to a peace pact cobbled out after months of negotiations between the two political rivals. In Zimbabwe, reports continuously circulate that Mnangagwa has reached out to Chamisa to negotiate something or the other. No sooner are such reports released than denials are issued, so it is not yet clear what is going on and which direction Zanu PF and MDC Alliance are taking, if any, to try and heal the post-election rift and tension after Chamisa’s continued refusal to accept the results and endorse ED’s presidency.

Chamisa’s endorsement is of no legal consequence, but it is invaluable as a tool for fostering unity and reducing the political tensions prevailing in the country. If Kenyatta and Odinga managed to come to the negotiating table and talk peace, it is possible for Chamisa and Mnangagwa to do the same for the sake of the country. The most important lesson to take from the Kenyan experiences discussed is Odinga’s response when asked why he had sold out by agreeing to negotiate with Uhuru when for so long he had vowed to never talk to the man he accused of robbing him of his lifelong dream of being a president. He responded like a true statesman when he said: “We could not afford to sit and wait for 2022 while our people continued to be left out of development. I was not ready to wait for the next election as my people suffered.’’

If politicians from the different parties loved the country more than they loved politics there would be more statesmen and women and that is what Zimbabwe needs right now- fewer politicians and more statesmen and women.

 Miriam Tose Majome is a lawyer and teacher. She writes in her personal capacity and can be contacted on enquiries@legalpractitioners.org

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