Another View: Why I Disagree with the Supreme Court of Kenya

By Isaac Rutenberg**

I have nothing but the utmost respect for Dr. Willy Mutunga. He is brilliant and progressive, and I couldn’t pick anyone better to lead the judiciary. Nevertheless, I fundamentally and vehemently disagree with the Supreme Court’s recent holding that spoilt ballots are not to be counted in the presidential ballot.

Under Kenya’s Constitution 2010, a presidential candidate wins only if s/he gets at least 50% + 1 vote of the “total votes cast.” In the 2013 presidential election, the Supreme Court was asked to rule on several issues including whether the spoilt votes should be considered with respect to the 50% + 1 requirement. The Court held that such votes should not be counted, and to me, this represents a severe injustice.

Lawyers like to extrapolate a situation to its “logical conclusion” using hypothetical scenarios. In this case, consider an election with 100 voters. Assume that 99 of the voters cast spoilt ballots, and that one voter casts a valid vote for candidate X. Applying the Supreme Court’s logic such an election would be decided by the single valid vote, and candidate X would be declared the winner.Even though she received only a single vote in her favor, candidate X would have passed the 50% + 1 threshold (indeed, candidate X would be declared the winner with 100% of the votes in her favor!).

What are the implications of this hypothetical scenario (the logical conclusion of the Supreme Court’s decision), and are they relevant to the 2013 elections?

In the hypothetical, the voter turnout was 100% – i.e., every votertried to indicate his/her preferred leader. But, the minority rather than the majority determined the election outcome. In other words, 99% of the electorate wasdisenfranchised, and the country would be forced to accept a leader chosen by only 1% of the population.Surely this cannot be considered a desirable form of Democracy. The only fair course of action in this hypothetical is to re-vote until the number of spoilt ballots does not influence the outcome.

One might argue that the voters casting spoilt votes are to blame, and that they should have been more careful to ensure they are casting valid votes. This argument places the blame in the wrong place. It is the government’s responsibility to hold elections that are accessible to the entire population regardless of their level of education, primary language, and ability to read/write. Citizens with opinions (as evidenced by their turning out to vote) should not be punished merely because the government failed to hold an accessible election.

There is one instance where I would have agreed with the Supreme Court, and that is where it was proven that the spoilt ballots were fraudulent (e.g., attempts by one or both parties to increase the voter turnout in order to force a run-off).

Provided that the spoilt ballots were not fraudulent, they represent the undeterminable will of the people. Such ballots cannot be ignored. If the spoilt ballots were numerous enough to influence the outcome, the only fair course of action would be a re-vote.

In the case of the 2013 election, the margin of victory (i.e., for satisfying the 50% + 1 requirement) if the spoilt ballots are counted was less than 10,000 votes. With over 10 million votes cast, this margin is less than 0.1%, which must surely have been within the margin of error for the voting process. I am therefore skeptical that the outcome actually reflects the will of the people. In any event, for the above reasons, I am more upset about the precedent set by the Supreme Court in ruling that the spoilt ballots are not to be counted.

**Follow him on twitter: @iruten

The Generation That Wouldn’t Vote

Guest post by Soni

kenyans in the US

In a parallel universe, perhaps, Diaspora Kenyans would’ve registered to vote for this year’s General Elections.

On a related note, in a parallel universe, ICC suspects would not be running for positions of power and certain governor-hopefuls would be in prison, but that is not my focus today. Continue reading

“Why I Will Not Be Voting” by @iFortKnox

Guest blog by @iFortKnox

Vote For Nobody Graffiti

I grew up a lone child and since I lost my mum when I was seven, it was just me and my dad until my teenage years when I was sent to boarding school.

Living with my dad, I was exposed to a lot of life experiences either through practical participation or historical narratives. My dad reads a lot. I mean A LOT. And he’s not much of an outgoing person unless it’s a church-related function, which he had a lot to attend because he was and still is a catechism facilitator. So when he wasn’t involved in any of those church functions, he’d just stay in the house reading, listening to music, and when he’d get bored with all that, I was the only human being around he would have conversations with. We’d talk about virtually everything, from religion and specifically why I didn’t like church and church-like stories like why I shouldn’t eat white meat, women, and our clan back in the village, my education, and sports – he was a very good hockey player back in his school days and lots and lots of history. That is how I spent most of my weekends. Week days were play days for me.

That is how I gained interest in politics, reading and discussing politics. Continue reading

What a Horrible, Horrible, Horrible Time to be a President

by tripppleO

“When thousands of peoples is riled up to see you
That can arouse ya ego, we got mouths to feed so
Gotta stay true to who you are and where you came from
Coz at the top will be the same place you hang from
No matter how big you can ever be
For whatever fee or publicity, never lose your integrity”

– Nasir bin Olu Dara Jones (aka ‘Nas’)

Long hours on the campaign trail, packed and charged rallies, meetings with campaign donors, countless election strategies and counter strategies all culminating in the announcement of the win and the swearing in ceremony. It’s all usually glamorous and inspiring to most people looking in from the outside. Although the campaign period is extremely stressful and draining on the candidate the really hard work begins once that candidate is sworn into office.

Just ask Barack Obama. After his ‘landslide’ win he embarked on achieving some of his campaign promises and he was successful in some most notably healthcare and Wall street reform. However, there is the big issue that has dominated news in the States these last 6 months (not Osama) have been the budget deficit. Make no mistake, the U.S debt is a serious global issue. While the risk of the U.S defaulting on its debt may be a bit farfetched, given the close linked global economy, it is crucial that they sort out their debt issue. As most economists will confirm the two ways to cut a deficit are either reduce spending or increase taxes. However, both options are politically risky for any American president. (There’s also the increased tax receipts/collections option as a result of economic growth but this is more long term in most cases and highly dependent on economic growth).

Continue reading

Kenya: Is There a Lifeline For The Future?

by Neemo

Many Kenyans have been wondering whether the current government is serious about pledges they articulated to the electorate.

For the majority of the past fifty or so years since independence, the KANU party had been in control and was described as a “dictatorial kind of party” that never listened to the peoples problems. The land clashes, embezzlement of funds, the political assassinations, the land grabbing and the murder of clergymen were all characteristics of the former regime.

Fast forward to the 2002 general elections where the NARC party won a landslide victory on a platform of economic reforms, adoption and implementation of a new constitution within one hundred days of getting into power, free primary education and the controversial issue of creating five hundred thousand jobs annually. To their credit, at least they have fulfilled their pledge of providing free primary education, which has given impoverished children a lifeline. But that seems to be all there is to it.

The current government doesn’t seem to have changed much from the previous one. In fact, most of the same people who were in KANU are now in the ruling party. Financial scandals caused by the governments appointment of old guards are raising eyebrows among the youth. Most of them find it unworthy to study when their credentials will get them nothing but a first place in the unemployment line as they watch doddering old men take over the places that are rightfully theirs. It is for this reason that they are asking themselves, “Is there any hope for us in the future?” Continue reading

Simpl-ICC-ity

by SHIRO NJAGI

Maybe I am naïve and not very well-versed with law, especially the Kenyan Constitution and the Roman Statute. I must admit I didn’t read the whole Constitution even as I woke up early that morning and stood in line to cast my Yes or No vote.

Before the post-election violence, I did not even know there was a court called the International Criminal Court that tries war crimes and crimes against humanity, but then again, I didn’t know what Post-Election Violence was until I saw brothers turn against sisters and children get incinerated in a place of worship.

Before the last elections, I didn’t think tribalism was a reality. I didn’t know that bitterness ran so deep in my neighbors’ veins against me. I didn’t know my prejudices and stereotypes against my other brothers ran so deep.

Before post-election violence, I did not know what IDP meant. Internally-displaced person? All I’d ever seen were refugees; people running from their war-torn countries to seek refuge in ours…not people running from their homes within their home country because their neighbors want them dead.

And today, I don’t think I can read and understand the Rome Statute. Continue reading