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

Uhuru Budget: What About the Deficit?

While it would be overly dramatic to describe the state of Kenya’s finances as being in the red zone it is safe to say that there are some slight causes for concern. These causes for concern mainly relate to the growing levels of debt and the deficit. As things stand the total debt is currently around 50 % of GDP while the past budget deficits have hovered between 5.5% – 6.8 % of GDP.

A budget deficit is not inherently devastating, seeing as governments are not in the business of profit making. In fact, it would be reckless for a government to sit on a huge surplus while that country faces welfare, recurrent and development expenditure needs. However, large deficits year after year translate into troublesome/unacceptable government debt, which is more often than not paid for by future generations by way of taxes. This is the case in Kenya, where over the last few years, government spending has consistently exceeded government revenues. And based on the recently released estimates from the Treasury, showing planned spending of KShs. 1.2 trillion, all indications are that government spending is on a one way path upwards. This, coupled with the government reducing tax on various fuel products and cereals, all have the effect of further widening the deficit, accumulating the debt and further burdening future generations.
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Increased Cost of Living – Cartels? Pirate Money? Or Not.

I’m sure most people are glad that the church took some time off holding prayer rallies and meetings for some of the Ocampo 6 to petition the two principals to address the rising food and fuel prices in the country. Despite the news and newspaper headlines over the past 3 months being dominated by another issue – the real issue that’s been eating into most Kenyans has been the increased cost of living. Everything seems to be going up: ugali unga; unga ngano; bread, oil, fuel… The official inflation figures confirm the price increments; the inflation rate in January was 5.42%, February 6.54% and March 9.19%-the result, public outcry culminating in last week’s mass action protests peaceful demonstration by the Consumer Federation of Kenya (COFEK).

The (inflation) facts speak for themselves, the question is WHO IS TO BLAME for this extra burden on Kenyan citizens? Some people have laid all the blame on cartels others claim that the influx of Somali pirate money has led to increased demand which has led to a corresponding increase in prices. Others have blamed the government for inaction.

While there may be some truth to some of the ‘explanations’ above it is important to remember that a lot goes into rising prices than pirate money or cartels.

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Bankers: Robbers or Businessmen, or both?

There was a story in the press a few weeks back about [well I don’t know how to describe him but here goes] a English fella who was knighted some years ago for his services to the banking industry. He was a former CEO of one of the biggest banks in the UK and had worked in banking prior to that (since like ’95) but the funny thing is that he applied for a super-injunction in a British court to prevent the press from referring to him as a b*nker… no s**t, like really? Clearly since the global financial crisis, that was mostly blamed on the b*nkers, it seems that it’s a bit unfashionable in the West to proclaim oneself as a b*nker.

Over here, methinks it’s still a respectable profession and the institutions themselves are highly regarded. Be that as it may, there are a few tendencies by our banks that are straight up unfair.

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