Charles Kanjama, a Senior Counsel and chairman, Law Society of Kenya, Nairobi branch, in this interview with ZEBULON AGOMUO and DAVID IJASEUN spoke on the recent presidential election in the country. Excerpts:
May we know your greatest excitement about the election and outcome so far in Kenya?
So five years ago when we had a presidential election, a competitive election, the matter went to court. It is the Supreme Court of Kenya that deals with the contest in the presidential elections in Kenya. The Supreme Court requested the elections commission to open up its computer servers so that certain information would be shared with the different parties involved in the transmission of election results because there are allegations of fraud during the transmission of the data.
So, at this time, the election commission decided to display all the result declaration forms on a public portal. So, the moment each polling station concluded the voting and counting of the ballot, the result declaration form would be filled across 46,000 polling stations in Kenya. Afterwards, the presiding officer would take a photo or scan the form and send it to the elections body. And so, all 46,000 forms were deposited in the portal. So that was quite good, it meant that members of the public could see the results and tally them if they wanted to, as a measure of increasing transparency in the election’s outcome.
Can you speak on the extent to which social media played role in this last election in Kenya?
In Kenya, social media is quite important as an avenue for political discussion and each of the major political parties has bloggers or social media warriors who keep posting in favour of their different parties. In past elections, there were lots of hateful languages or what you call hate speech from ordinary Kenyans attacking the candidates of the other side.
Sometimes, attacking the groups that vote for the other side because in many parts of Africa, including Kenya, our elections tend to have an ethnic dimension; ethnic and political seem to be connected quite a bit and this time around even though you still had the usual social media engagement and some negative comments about other people or supporters, generally, the quality of the conversation was not as hateful as in the previous election but there was still propaganda being shared on social media, a lot of fake news, but also a lot of boosting information, candidates taking photos of all their rallies trying to show that they have the support.
So, social media plays that role but one thing that is important to note is that in Kenya the way you appear to be performing on social media may not necessarily translate to vote on the ground.
There are some candidates who may appear popular on social media, but they are not popular on the ground, what we call the grassroots. So, social media is a way of managing your image and reputation but it does not substitute for the difficult work of canvassing on the ground in groups and individuals.
The role of the Judiciary in election cannot be overemphasised; now, do you see the present electoral matters going up to that level because we have already heard that Raila Odinga has gone to the court to challenge the results? Do you see this going up to the Supreme Court?
Let me put it this way, the courts have become increasingly involved in political disputes both before and after the elections. In the two to three months before the elections, the courts were heavily involved in dealing with pre-election disputes.
This includes nomination disputes, disputes about how to interpret sections of the electoral law, or how to apply the electoral law.
Some of these disputes were even resolved the day before the elections. Like there was a dispute about whether to use an electronic register or manual register of voting. The electronic register had been deployed and the dispute was whether it should be supplemented with the manual register. So, this involvement of the courts sometimes affects the ability of our election commission to be effectively prepared for the election. And then after the election, you have post-election disputes and these ones are basically by the losers who will go to court to challenge the election outcome.
There is a full expectation that there will be numerous election cases because we had six contests going on at the same time.
Every Kenyan who went to the ballots voted six times and for six different positions; for a president, a senator, a governor, a member of the National Assembly, a woman representative who sits in the National Assembly also and forward representative who sits in a county assembly. So, there were multiple seats of contests and several of them we end up in the court. In the case of the presidential election, the law in Kenya is that any contest to the presidential election results go straight to the Supreme Court and there are seven days to file a case in the Supreme Court; if you are challenging the election outcome, and the Supreme Court is given 14 days only or two weeks by the Constitution to hear the case and give an outcome. If the outcome is to order that the election be carried out afresh, then a fresh election is held. If the outcome is to uphold the decision of the election commission, then the new president is sworn in.
So, we fully expect court cases to be filed. Raila Odinga who was declared a second, has addressed the press this (Tuesday) afternoon, and he said he disagreed with the results, that they were null and void and that he’s going to proceed to court to challenge the outcome.
The incumbent president, Uhuru Kenyatta will be living behind the legacy of high inflation, high unemployment, and huge debt. Now, what do you think should be the low-hanging fruits that the incoming administration could pluck, in order to quickly address some of the economic challenges that the country had been plunged into over the years?
So, part of the economic challenges that Kenya is facing are structural. Part of them are from conditions that affect not just Kenya but the region and in fact, the continent and the world arising from various factors, like the ongoing conflict in Russia and Ukraine, the impact on oil prices and so on.
So, some of those challenges will require wisdom and time to deal with but there are some structural challenges that have a reason because of the priorities of the outgoing administration in terms of public spending on large infrastructure projects, maybe not spending as much on other activities that might have a larger economic multiplier; like the agricultural sector and also the question of our burgeoning public debt which has been increasing.
Our debt to GDP ratio is over 50% by now. So, these are some of the challenges and I think the incoming administration will need to have good economists and planners who can immediately decide where to prioritise, what areas of the economy.
And one of the key areas that need to be prioritised is the agriculture sector because there have been very high prices for inputs like fertilizer which have affected the outputs that are coming from the agriculture sector.
In Kenya, the agriculture sector accounts for about 30percent of our gross domestic product; so, it is very substantial and it’s the most important sector in the country. There will be those kinds of measures and then there will be a need to review the taxation measures that play the role in increasing the cost of living but the government still need to generate revenue to implement the promises that both parties have made to Kenyan people. So, it is not going to be easy but if they have good economists, they should be able to accomplish some improvement in the state of the economy.
In August 2018, a research firm said that Ruto was the most corrupt political leader in Kenya and now four years down the line, Kenyans went to the polls to elect the same man. Does it mean that Kenyans deliberately handed over the country’s treasury to an alleged corrupt leader; or what do you think really happened?
In matters of corruption, an opinion survey cannot give you facts about whether someone is actually corrupt or not, it gives you a perception based on various reporting that has happened.
To determine the facts, you need to have a legal process, where you go to court and you present evidence and then you are either convicted or acquitted.
At the moment, William Ruto, the president-elect in Kenya, has not been convicted of any corruption offence. There have been one or two cases that have been high profile and taken to court; one involves a hotel in Nairobi that he acquired, called the Western Hotel. He allegedly was about to grab the land of a public primary school and allegedly was built on the land of one of the airports in Nairobi.
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And another one involves some pieces of land in another town called Eldoret, but his team has always professed his innocence. They have said that it is because he fell out with the president of the country that he has been targeted but definitely it is well known that he has grown from rags to amazing riches. He’s a very wealthy man, and the source of the wealth is not clearly understood.
So, different people have different views of the matter, but those who are supporting his candidature are saying that there are other problems worse than ordinary corruption in Kenya and they were saying that problem is what we call State capture.
A state capture is similar to what we saw in South Africa when there was this attack about the former president and the Guptas. There has been an accusation that the head of state has led a mechanism that has got involved in state capture which causes much greater harm to our country. It is also a form of corruption.
So, there have been those accusations and counter-accusations. At the end of the day, Kenyans are to choose between a number of characters, each has their flaws, we know each of them well, there were considerations including ethnic alignments and that is the outcome that has been declared.
I don’t think I can say more about it only that his opponent Raila Odinga is widely recognised as a reformist, as someone who has put a lot of effort into the struggle for reforms in Kenya from the early 1990s and so the supporters of Raila Odinga really value his contribution to the struggle and he has run for election for President five times and he’s even believed to have had his victory stolen from him in the year 2007 when Kenya descended into post-election violence and required international actors to come and help us to reach our consensus on power sharing.
So, this was his fifth stab at the presidency and we were voting for the fifth president. His supporter kept referring to him as Baba, which means father; so they are calling him Baba the fifth which means the fifth president of Kenya, and the opponents were saying that he is the fifth because he will lose for the fifth time and the current situation is that it has been declared as the fifth loss for him, but of course, he is challenging the outcome.
So, really, there are flawed characters on both sides, both have their strengths and their weaknesses, and Kenyans have to choose between them.
Can you describe what happened in Kenya as a new dawn?
Well, the election process is still going on because the results have been challenged; so we can’t tell whether it’s a new dawn until we get to the end of the election process. But definitely, this is the second opportunity for Kenya after we adopted a new constitution in 2010 to have a peaceful transition of power.
So, a peaceful transition of power strengthens democratic institutions and if we’re able to manage the peaceful transition of power, that of course will be some kind of dawn and you can say it will be some kind of new dawn; but depending on who will be getting the power and how the transition will happen, we will make the final judgment but that is yet to come.
Some of the Electoral commissioners disagreed during the collation of result, to the point that four of them broke ranks and held a unilateral press conference announcing that there were irregularities. Like some people are alleging, do you read any form of manipulation or infiltration of the electoral commission by the incumbent?
Actually, the accusation is the reverse. The accusation is that it is the party of the deputy president who is currently not in power that is being accused of having infiltrated the electoral systems and the party that is accusing him is the party that includes the current president and Raila Odinga who is running for president for the fifth time. So, the curious thing is that the party being accused of infiltrating the systems is the one that is now out of power. Has evidence been brought out that might be persuasive? Not yet. We have not yet seen the evidence. But that is the reason why a court process exists; within the next two weeks, we should see whatever evidence is available. But so far, from the public comments and remarks, there have been some casual statements about infiltration, but no evidence to back up the statements, but maybe the evidence is being prepared for court.
What is your takeaway from all that has happened in Kenya this period in terms of the election?
We do this every five years; it is a routine process in Kenya. The electoral commission called the Independent Electoral Boundaries Commission is getting better every election cycle in terms of transparency, accountability, and greater deployment of technology. But for the people of Kenya, this is a part of the ritual of democracy that we go through every five years. We were concerned about how long it has taken for the results of the presidential race to be declared.
We still go through moments of anxiety and even some tension in our country because of the fear that it could trigger some kind of violence if the situation is not well managed. We have institutional actors, Civil Society, faith-based players, and the International Community that tend to come in and assist with messages of peace, harmony, and brotherly love during this period. So far, things have been going on generally okay, and we hope the situation will continue.
Did the youths in Kenya play any significant role before, during, and after the election time?
First of all, the youths are the majority of the people who attend the political rallies of the different candidates, and the youths are the ones who are most active in social media engagements.
Kenya like most countries in Africa with a growing population has a high proportion of youths in the population, but in terms of voter registration, the youth did not register in large numbers as the older generation.
So their proportion among the voters’ registers is lower than the proportion of the population. And I think it is a worldwide phenomenon that older people tend to take the civic duty of voting more seriously.
So the youths are more involved in the pre-election political stage and in the queues on voting day, you tend to find more of the older people than the younger people. You still have a few younger people, but they are not as many as the older people.
The role of the youth is that they help in building a certain mood or environment in favour of certain candidates, but eventually many of them are not there casting their vote.
