CHAPTER 25 PRESIDENTIAL AND PREMIER ELECTION, SUCCESSION AND TRANSITION IN 2017 AND BEYOND: ELECTORAL JUSTICE, POPULAR SOVEREIGNTY, PROTESTS, REVOLUTIONS, AND SECESSION DEBATES AND MOVEMENTS This Draft Chapter may be cited as: Ben Sihanya (forthcoming 2019) “Presidential and Premier election, Succession and Transition in 2017 and Beyond: Electoral Justice, Popular Sovereignty, Protests, Revolutions, and Secession Debates and Movements,” in Ben Sihanya (2019) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa Vol. 1: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya, Chapter 21. 25.1 Reconceptualising and problematising Kenya’s 2017 Presidential Electoral and Transition Process There are three core overarching questions in this Chapter. First, what were the core questions and issues in the 2017 presidential electoral cycle and transition in Kenya? Second, how was popular sovereignty reconceptualised, problematized and contextualized or operationalized in the quest for socio-economic and electoral justice? Third, what lessons does Kenya and the international community learn from Kenya’s secession debate and the quest for constitutional reform, implementation and enforcement after the 2017 presidential electoral, political, governance and constitutional crisis? In conceptualising and problematising Kenya’s 2017 presidential electoral and transition process, this Chapter adopts an Afro-Kenyanist methodology. In spite of the electoral, political and constitutional abuses discussed in this book generally and especially in Chapter ….?1 below, about 78% per cent of the registered Kenyan voters went to the August 8, 2017 polls determined that their vote would count and that their quest for change would be fulfilled. The (manual) voting process was largely free, fair, secure and transparent and violence free (as required under Articles 1, 10, 38, 81, and 86 of the Constitution). But it was largely non-accurate, and non-accountable contrary to the same constitutional provisions. Significantly, there were deliberate cases of constitutional non-compliance, illegalities, and irregularities including names missing from the register of voters and (pre) stamped ballots, hence a failure to comply with the doctrines of universal suffrage (Art 38 of the Constitution) and fair administrative action (Art 47 of the Constitution). The main challenges arose when the Independent Electoral and Boundaries Commission (IEBC) refused or failed to follow the constitutional, legal and regulatory process and procedure of transmitting presidential election results through deliberate sabotage and manipulation of the Kenya Integrated Electronic Elections Management System (KIE(E)MS) and process. 1 Chapter 20 of CODRALKA 1 1 These and other cases of constitutional non-compliance illegality and irregularities were articulated in the presidential election petition filed by Raila Amolo Odinga, the presidential candidate, and Stephen Kalonzo Musyoka, the running mate of the National Super Alliance (NASA) in Hon Raila Odinga & Hon Stephen Kalonzo Musyoka v. IEBC & 2 Others.2 One of the major findings of the petition was that IEBC servers and the password or the Chair of the IEBC, Mr Wafula Chebukati had been illegally accessed by “strangers” who manipulated the system leading to the announcement of Kenyatta of the Jubilee Party as President. The Supreme Court nullified the presidential election and ordered a fresh presidential election. The 4-2 determination was rendered in the following three-pronged decision: First, “A declaration is hereby issued that the Presidential Election held on 8th August 2017 was not conducted in accordance with the Constitution and the applicable law rendering the declared result invalid, null and void.”3 Second, “A declaration is hereby issued that the 3rd Respondent was not validly declared as the President elect and that the declaration is invalid, null and void.” Third, “An order is hereby issued directing the 1st Respondent to organize and conduct a fresh Presidential Election in strict conformity with the Constitution and the applicable election laws within 60 days of this deter mination under Article 140(3) of the Constitution.”4 As discussed below, President Uhuru Kenyatta and IEBC, with explicit or implicit support from some of Kenya’s development partners and transnational corporations (TNCs) ensured that no reforms were effected before the October 26, 2017 so-called re-run (?) it turned out to be Kenyatta coronation or Jubilee referendum. 25.2 Contextualising Kenya’s 2017 Electoral and Transition Process In this context, Kenyans focused on discussing three options: First, the immediate conduct of a presidential electoral justice through the realization of free, fair and accountable elections under a restructured IEBC. Second, the installation of a legitimate (people’s) President through the direct exercise of popular sovereignty under article 15 aka people power or popular uprising. 2 Hon Raila Odinga & Hon Stephen Kalonzo Musyoka v. Independent Electoral & Boundaries Commission, Wafula Chebukati and Uhuru Kenyatta, Presidential Election Petition No. 1 of 2017. The decision was a constitutional and political revolution or thunderbolt that reverberated throughout Kenya, EAC Africa and the world. It helped elaborate the myth of free and fair that Uhuru Kenyatta, the Government and ...Government observers had proposed. 3 The majority consisted of CJ David, Maraga, DCJ Philomena Mwilu, Justice Smokin Wanjala and Justice Isaac Lenaola. Justices Jackton B. Ojwang’ and Njoki Ndung’u predictably dissented. 4 The most dramatic, memorable and widely quoted aspect of the judgment was Chief Justice David Maraga summary on September 1, 2018, which also formed a core part of the full majority decision handed down on 20/9/2018. 5 Article 1 provides for sovereignty of the people. Art (1) states that “all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.” 2 Third, secession to allow the Kenyatta or Kikuyu Uthamakistan Kingdom6 to finally separate from the Kenya People’s Republic, and for Kenyans to enjoy self determination. This discourse is guided by the Kenyan and African experience on presidential election, governance, transition and secession as well as broad-based works of four Western scholars and at least four contemporary African scholars. The Western scholars are first, Dr Karl Heinrich Marx on fundamental change or “economic determinism” and class or social struggle to address economic, social and political injustice. Second, Prof Max Weber who taught on the sources of and quest for legitimacy or legitimate authority as well as cultural change as a foundation of legality.7 Third, Prof Hans Kelsen wrote on sudden or revolutionary change and necessity as a basis validity of normative, constitutional and political (or presidential transition). And fourth, Havard constitutional Prof Larry Lessig, especially on the (American) presidency and restructuring the Republic.8 The four key African scholars are first, Prof Ben Nwabueze on Constitutional Democracy in Nigeria and Africa. Second, Prof Yash Pal Ghai on ethnicity and the Kenyan system of governance, legitimacy and the rule of law, as well as the 2017 presidential transition.9 Third, ES Atieno Odhiambo on tribalism, marginalisation, the construction of Kikuyu hegemony.10 And fourth, Ben Sihanya’s work on the quest for socio-economic, political and electoral justice in a Kikuyunised Kenya. So which combination of the three options will Kenya pursue now or should the circumstances of 2017 recur? Free, fair and accountable elections? Popular uprising to install a legitimate (or people’s) president? Or separation and secession? Who have been the key players in Kenya’s socio-economic, political and constitutional gridlock? What are their interests? How will these be resolved in the public interest and in a manner consistent with electoral justice, constitutional democracy and popular sovereignty in Kenya?11 25.3 Why IEBC must be restructured for free, fair and accountable election or referendum At least three issues underline the need for fundamental restructuring or reorganization of IEBC in terms of the composition of commissioners, executive, human resources and technology or ICT. First, on September 1, 2017, the Supreme Court of Kenya invalidated, nullified and voided the August 8 presidential election and (not just numerical aspect of the result or outcome). In a 4-2 6 See authorities on origin and development of the Kikuyu uthamaki, dynasty or kingdom 7 See also Chapters……(“Theorizing and methodology of comparative constitutional democracy and administrative law…) of CODRALKA 1……Chapter 2 of CODRALKA 2. 8 See Lessig and Sustain, The President and the Administration…..See Lessig, Republic lost. 9 See also Chapters 20 OF CODRALKA 1; and 14 of CODRALKA 2. 10 See Chapter 1. 11 Chapter 15 CODRALKA 2 addresses similar and related questions with regard to the March 9, 2018 rapprochement or “handshake” between Raila Odinga and Uhuru Kenyatta. 3 determination and judgment, the Supreme Court found IEBC had committed illegalities and irregularities that rendered the entire process, including the declaration of Uhuru Kenyatta as President “invalid, null and void.” The majority consisted of Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu, and Justice Smokin Wanjala