From all indications, the fresh presidential election as ordered by the Supreme Court will proceed this Thursday – peacefully or chaotically – unless, of course, a last-minute legal impediment pops up.
The only key concern is what the aftermath of the poll portends for Kenya.
While President Uhuru Kenyatta and National Super Alliance (Nasa) leader Raila Odinga have previously said that they always “call each other whenever there is a crisis in the country,” they do not seem keen on agreeing about the best approach to end the current stalemate.
Mr Odinga, who has announced withdrawal of his candidature, wants dialogue that will help level the playing ground ahead before a fresh election — meaning October 26 is too soon to be tenable.
He has said there will be no polls — especially in his strongholds, promised a big announcement on Wednesday and called for protests on voting day.
But Mr Kenyatta wants the election to proceed before any talks can take place.
Addressing the nation on Mashujaa Day, Mr Kenyatta was categorical that the current political impasse must be put to an end “once and for all”.
By this assertion alone, it is doubtful the President and his Jubilee supporters will accept another court decision that annuls his win.
And in there lies dark days ahead for the country. According to Rarieda MP Otiende Amollo, who served as one of Nasa’s lawyers in the presidential petition,
Thursday’s election is clouded in several illegalities and provides sufficient grounds for any Kenyan to file a successful challenge. .
“It appears Jubilee is determined to have this election done. Well, they can proceed with this charade, of which we do not want to be a part of, and wait for the consequences thereafter,” says the lawyer.
Similar concerns have been expressed by the Independent Electoral and Boundaries Commission (IEBC) chairman Wafula Chebukati.
Speaking last Wednesday, Mr Chebukati, who is the Returning Officer of the presidential elections, affirmed he could not guarantee the credibility of the upcoming election.
Mr Chebukati spoke only hours after Dr Roselyn Akombe resigned from IEBC as a commissioner.
She similarly stated that the Supreme Court orders notwithstanding, the Commission was under siege from high profile politicians and could clearly not “organise a free, fair and credible election.”
A commentator on political affairs, Prof Macharia Munene, is alive to the fact that while parts of Kenya will vote peacefully, there is likely to be a confrontation in other parts.
But this does not worry him “because a winner in the Thursday poll is guaranteed and that makes for less post-poll acrimony”.
“Raila will go to court again and challenge the procedure of and the results and it will be up to the courts to make a decision which, hopefully again, Kenyans should abide with,” says Prof Munene. This view is also shared by Jubilee allied politicians, who maintain that the election should proceed on account that it will be hard to nullify a win again.
On his part, Prof Edward Kisiang’ani, a history and international relations lecturer at Kenyatta University, is disturbed that the Thursday poll will expose Kenyans to “what we fear most about ourselves”.
When a section of Kenyans turn out to vote and others stay away, Prof Kisiang’ani observes, it will be clear to the world, “that there is one side of Kenya that doesn’t understand the other and that one side will be saying, ‘we are not part of your dream’”.
This scenario is frightening, he says: “As suggested by the clergy and even the IEBC chairman, what this country needs is dialogue. “
“We require a political and not a legal solution. The people’s anger in parts of this country stems from historical injustices and the dominance of certain communities over them and such instances simply require political compromises.”
Since the historic ruling by the Supreme Court annulling the presidential results, allies of the two rivals have been engaged in an intense political chess game with each side trying to outdo the other.
It is a battle of wits that has been fought in boardrooms, courtrooms and in Parliament, where Mr Kenyatta’s Jubilee Party enjoys superior numbers.
Effectively utilising the numerous advantages of incumbency, Jubilee’s numerical strength in the National Assembly and Senate and an electoral body whose majority of commissioners are alleged to be friendly to Jubilee, the President and his allies have gone ahead to deconstruct each and every impediment that led to the voiding of the August 8 poll.
Through radical election law amendments, rushed through by Jubilee legislators and boycotted by their Nasa rivals, Mr Kenyatta’s backers hope to tame the Judiciary against overturning a presidential poll result and quash the legislation that only the IEBC chair can serve as a Returning Officer of the presidential elections, among other proposals.
These changes are contained in the Election Offences Amendment Bill, 2017 and Election Laws Amendment Bill, 2017, yet to be signed into law by the President.
These proposed amendments, according to Mr Amollo, only served to convince Nasa politicians that Mr Kenyatta and Jubilee were not keen on having a free and fair electoral process as directed by Chief Justice David Maraga.
Already Nasa had communicated a protest note to IEBC citing the so-called “irreducible minimums” as a precondition for their participation.
Convinced that IEBC had declined to address its key concerns, Mr Odinga and his running mate Kalonzo Musyoka wrote to the electoral body withdrawing from the race.
But, as if to illegitimise Mr Odinga’s claims, IEBC has gradually addressed some of these concerns.
The latest is the decision by IEBC secretariat boss Ezra Chiloba to take a three-week leave from duty.
Even more curious is the fact that the President is yet to sign “the offending” electoral legislation into law. When and if he will do so, remains a valuable political weapon.
With Mr Odinga’s backers citing the said electoral laws as proof of Mr Kenyatta’s “mischief to change the rules of the game midway”, it appears Jubilee’s strategy is to totally disarm Nasa.
Prof Munene regrets that Mr Odinga’s political history “is on the verge of ending tragically”.
Claiming that the former Prime Minister has boxed himself into a corner after opting out of the poll, he opines that what remains of the Nasa leader is to craft an honourable exit: “He was given a second chance by the courts, which he has unfortunately blown away”.
Jubilee Party vice-chairman David Murathe also thinks that Mr Odinga risks sliding into political oblivion like former Ford Asili leader Kenneth Matiba who, in 1997, invited his supporters to burn their identity cards and boycott the elections.
Mr Murathe, then a national official of Ford-Asili, abandoned Mr Matiba’s ship alongside Mrs Beth Mugo, Mr Njehu Gatabaki, Mr Stephen Ndichu, Mr Patrick Muiruri and Mr Moses Muihia.
However, Orange Democratic Movement (ODM) director of elections Junet Mohamed faults Mr Murathe’s analogy, arguing that his party leader and Mr Matiba are not political equals.
One, he observes, is a consistent political player and agitator of the people’s freedom who has been on the scene longer and who has served in the capacity of “co-president” while the other shot to prominence only once when he ran for president.
On Sunday, Mr Murathe reiterated his much criticised assertion that Kenya needs a benevolent dictator and that Mr Kenyatta is going to be that kind of man: “Countries that have made remarkable progress in development have had a strongman at the helm. And to say that our President is going to be a strongman during his second term of office does not mean he is going to be a ruthless leader. It simply means he is going to be firmly in control of the situation in the country and that is a positive thing.”
According to the former Gatanga MP, this disposition is necessary owing to the fact that the current Constitution is “too liberal”. Indeed the President himself has commented on this.
Only recently, Mr Kenyatta appeared to express his desire to change this reality. While meeting winners of the August 8 General Election allied to Jubilee at State House, he pointed out that Jubilee enjoyed a firm majority in Parliament and was only shy of 13 MPs to enable it to change the Constitution.
The President’s manoeuvres sit pretty well with Mr Murathe’s notion of a leader in “total control”.
But before then, people like Dr Akombe want Thursday’s election postponed.
“It is not too late to save our country from this crisis. We need just a few men and women of integrity to stand up and say that we cannot proceed with the election on October 26, 2017, as currently planned”.
Party out to prove candidate was deprived of victory by Supreme Court’s nullification of August 8 poll.