Why had the Commission been seen as the vehicle for settling the dispute? According to Kofi Annan, "They had considered everything, recount, re-tallying or forensic audit, all agreed an independent committee was the viable option."
What was the verdict of the Kriegler Commission, as reported in the media? First and foremost, that it was impossible to determine who actually won the Presidential contest. Why? Because in the December elections, his Commission had found, "ballot boxes were stuffed all over the country...there was vote-buying, bribery, intimidation, and women were not allowed to stand for certain offices."
And this was not a one-off event. As he had noted on KTN's live TV show Thursday night (see last week's issue of The Standard on Saturday):
"You have been having very bad elections for many years, you have had violence, fraud, vote buying, bribery, intimidation, so election after election you have been prepared for that process... It has now caught up with you and it was a lesson that made Kenyans think of what to do...with what has not been a very good election track record."
Moreover, he added, this "problem of many decades" is:
"...partly the leaders, partly the people, partly your history, partly the electoral commission's fault...everybody has some answering to do for what went wrong that day."
So that now, he said at the press conference:
"If you think it's vital to find out if there was rigging at KICC [where voting results from the country's 210 constituencies were tallied by the Kivuitu-led Electoral Commission] to determine if Raila or Kibaki won...God help you! We could not." And, "If we didn't settle somebody's wish as to who won, I am sorry we are not members of a Jockey Club, we had a job to do."
In his view (in The Standard on Saturday), "The integrity of the process and the credibility of the results were so gravely impaired by...manifold irregularities and defectsthat it is irrelevant whether or not there was actual rigging at the national tally centre. The results are irretrievably polluted."
Hey, wait a minute, a number of commentators have argued: Doesn't that mean that President Kibaki is in office illegally? No, answered the Judge on TV Thursday night, "but I do think the question of the legitimacy of the elections will become a very serious problem in future if people do not decide that they are tired of playing games of democracy and decide that they are entitled to choose their leaders through the ballot."
Clearly, pending specific constitutional reforms, a disputed Presidential election favours any incumbent who believes he/she has won, and on that basis chooses to stay put. On what grounds would the opponent(s) legally, or even forcefully, remove him/her in order to take over? Failure to determine who won does not now, as it did not in January, add any iota of rationale or legitimacy for a Raila takeover. Thus, we can only look to the future for a solution, starting now -- if not yesterday.
One option for the future is to constitutionally mandate the Speaker or Chief Justice, or, in their "absence" (or due to specified incapacity), or their deputies, to assume the office of Acting President while disputed results are sorted out -- even through a fresh election.
Concurrent with this would have to be the requirement that no swearing-in of a new President, or an incumbent in his/her second term, shall take place earlier than 14 days from the date of the announcement of the Presidential election results. This will give time for petitions to be lodged and heard, and will discourage the mischief of hurried and even secretive swearings-in which Kenya has witnessed twice already.
The Kriegler Commission's verdict has, at the very least, put a stamp of judicial authority on an educated view which most thoughtful Kenyans had already silently formed months ago -- as early as January. There are millions of this silent majority, who nevertheless found themselves powerless to influence the post-election turn of events in the crucial first 40 to 60 days or so. Both the President (Kibaki) and the Prime Minister (Raila) have now accepted the verdict, and promised to implement its recommendations. We will just have to wait and see.
Clearly, the Electoral Commission would have to be overhauled, as recommended. However, if there was one item that the Kriegler Commission failed to pay adequate attention to, it was the even greated mess that occurred within the constituencies in relation to Parliamentary and Civic elections. These were so intertwined with the Presidential elections that it is something of a deliberate abdication of duty not to have included in the Commission's terms of reference items specific to these levels, and not to have had something sobstantial to say in the report.
We cannot clean up the presidential election process if we do not also, or first, clean up the process at these lower levels. In very many constituencies, the agents of the presidential candidates were also the agents of their parties' parliamentary and civic candidates -- or vice versa. I saw it in Kisumu Rural. Doing all the dirty work for the presidential candidate, or seeming to, provided a perverse sort of justification (and cover) for doing as much dirty work as was necessary to ensure the parliamentary or civic candidate's own victory.
The corruption is systemic, but has so far been treated as the secret weapon for electoral victory -- which the likes of Kriegler should not be made fully privy to, and certainly should not take away in one "pathetic" instance of inquiry. That's why we'll just have to wait and see.
