NULLITY OF THE PEOPLE'S WILL? A Critical Analysis into the Legal Pitfalls of a Popular Vote Election in Kenya
INTRODUCTION
What if you voted for a candidate who promised to fight for your rights and interests, but later discovered that your vote did not really count? What if the candidate who won the election did not have the support of the majority of the voters, but only a plurality or relative majority? What if the electoral system that was supposed to uphold the principles of democracy actually undermined it? These are some of the questions that arise when we talk about “nullity of the people’s will” in the context of the popular vote election in Kenya. This article aims to critically analyze this concept and its implications for the legal and political system in Kenya.
The article seeks to explain what the popular vote election is and how it works in Kenya. The article will identify the legal pitfalls of this system, such as the lack of a threshold, the possibility of a runoff, and the role of the courts in determining the "will of the people". The article will also discuss how these pitfalls can nullify the people’s will and violate the democratic principles of representation and accountability. Moreover, the article will compare this system with other electoral systems that can better capture the diversity and complexity of the Kenyan society and ensure a more fair and inclusive representation. Lastly, the article will offer some suggestions and recommendations on how to reform the electoral system in Kenya and prevent the nullification of the people’s will.
THE POPULAR VOTE ELECTION IN KENYA: A Source of Nullity of the People’s Will?
Nullity of the people’s will is a term that describes the failure of an electoral system to reflect the true preferences of the voters. This can happen due to various factors, such as flaws in the constitution, laws, or procedures, manipulation or interference in the electoral process, intimidation or coercion of the voters, bias or distortion in the media, or influence from external actors. Nullity of the people’s will can undermine the legitimacy and stability of a political system, as it can erode public trust, spark social unrest, or invite unnecessary judicial intervention.
A popular vote election is a type of electoral system where the candidate who receives the most votes wins the election. This system is also known as plurality or first-past-the-post system. The popular vote election is widely used in presidential and parliamentary elections around the world, especially in former British colonies. However, this system has been criticized for its potential to nullify the people’s will and create various problems, such as wasted votes, spoiler effect, gerrymandering, regionalism, or minority exclusion.
In Kenya, the popular vote election has been used since independence in 1963. However, this system has been plagued by several controversies and challenges over the years. For example, in 2007, the Presidential Election between Mwai Kibaki and Raila Odinga was disputed due to allegations of rigging and violence. The outcome was a bloody post-election crisis that killed over 1,000 people and displaced over 600,000 people.
In 2013 and 2017, the Presidential Elections between Uhuru Kenyatta and Raila Odinga were also challenged at the Supreme Court due to claims of irregularities and fraud. The 2017 Presidential Election was annulled by the Supreme Court and a fresh election was held, which was boycotted by Odinga. These incidents have revealed the legal shortcomings of the popular vote election in Kenya and raised doubts about its suitability for a diverse and divided society.
TEN LEGAL PITFALLS OF THE POPULAR VOTE ELECTION IN KENYA: A Threat to the People’s Will?
The popular vote election in Kenya is a system that requires the presidential candidate to obtain more than 50% of the total votes cast and at least 25% of the votes in 24 of the 47 counties. This system was introduced by the 2010 Constitution as a way of ensuring that the President has a broad-based support across the country and reflects the diversity of the Kenyan people. However, this system also poses some legal pitfalls that may undermine the people’s will and the legitimacy of the election outcome. Some of these pitfalls are as follows:
1. The lack of a clear definition of what constitutes a valid vote
The Constitution does not provide a clear definition of what constitutes a valid vote, leaving it to the discretion of the Independent Electoral and Boundaries Commission (IEBC) to determine the criteria for counting and rejecting votes. This may create inconsistencies and disputes in the tallying process, especially in cases where ballots are marked in a way that is not prescribed by the IEBC.
In the 2017 Presidential Election, there were controversies over whether ballots that had ticks, crosses, or other symbols instead of stamps were valid or not. The IEBC argued that such ballots were invalid and should be excluded from the final tally, while the opposition claimed that they were valid and reflected the will of the voters. The Supreme Court eventually ruled that such ballots should be counted as valid votes. This shows how the lack of a clear definition of a valid vote can create legal pitfalls and undermine the credibility of the election results.
2. The possibility of a run-off election in a Presidential Election
The popular vote system requires the winning candidate to meet both the 50% plus one threshold and the 25% in 24 counties threshold. If no candidate meets these requirements, a run-off election is held between the two candidates with the highest number of votes. This may prolong the electoral process and increase the costs and risks of violence and fraud. Moreover, a run-off election may not necessarily reflect the true will of the people, as some voters may abstain from voting or change their preferences due to various factors such as changes in political alliances, intimidation, or bribery.
In the 2013 Presidential Election, Uhuru Kenyatta of The National Alliance (TNA) won with 50.51% of the vote, barely avoiding a run-off with Raila Odinga of the Orange Democratic Movement (ODM), who got 43.7%. Some analysts argued that Kenyatta’s victory was influenced by his alliance with William Ruto, who faced similar charges at the International Criminal Court (ICC), and by the fear of violence that marred the previous election in 2007. This shows how the possibility of a run-off election can create legal pitfalls and challenge the legitimacy of the election results.
3. The challenge of ensuring equal representation and participation in government
The popular vote system may create a situation where some regions or communities are marginalized or excluded from the electoral process. This may happen if some candidates focus their campaigns and resources on areas where they have more support or influence while ignoring or neglecting other areas where they have less support or face hostility. This may also happen if some voters are disenfranchised or discouraged from voting due to factors such as insecurity, violence, intimidation, corruption, or lack of civic education. As a result, some regions or communities may feel alienated or resentful towards the elected President and the new Government.
In the 2017 Presidential Election, some opposition strongholds such as Kisumu and Nairobi experienced violent protests and clashes with security forces after the announcement of Kenyatta’s victory. Some protesters claimed that the election was rigged and that their votes did not count. The Kenya National Commission on Human Rights reported that at least 37 people, including three children, were killed in the post-election violence. Moreover, some regions such as Turkana and Mandera faced security threats from armed groups such as al-Shabaab and local militias, which hampered the delivery and collection of ballot materials. Some voters also faced intimidation or bribery from politicians or their agents to influence their voting choices. These factors affected the voter turnout, which was 79.51% in the August election and 38.84% in the October repeat election. This shows how the challenge of ensuring equal representation and participation can create legal pitfalls and erode trust in the electoral process.
4. The risk of electoral malpractice and manipulation
The popular vote system may create incentives and opportunities for electoral malpractice and manipulation by various actors such as political candidates, political parties, state officials, or external forces. Some of these malpractices and manipulations may include vote buying, voter intimidation, ballot stuffing, vote rigging, hacking, or interference. These may affect the credibility and integrity of the election results and undermine the people’s confidence and trust in the electoral process and institutions.
In the 2007 Presidential Election, Raila Odinga of the Orange Democratic Movement (ODM) accused Mwai Kibaki of the Party of National Unity (PNU) of rigging the vote by inflating the turnout and manipulating the tallying process. The disputed results sparked violent protests and ethnic clashes that killed over 1,000 people and displaced nearly 600,000. Similarly, in the 2017 Presidential Election, Raila Odinga of the National Super Alliance (NASA) alleged that the Independent Electoral and Boundaries Commission (IEBC) database was hacked and an algorithm was set to ensure an 11% difference in favour of Uhuru Kenyatta of the Jubilee Party.
The initial results were annulled by the Supreme Court due to irregularities and illegalities in the transmission of results. However, Odinga boycotted the repeat election, claiming that the IEBC had not implemented adequate reforms. The repeat election was marred by low turnout, boycotts, and violence that left at least 37 people dead. These examples show how the risk of electoral malpractice and manipulation can create legal pitfalls and trigger instability and conflict.
5. The difficulty of resolving electoral disputes and petitions
The popular vote system may generate more electoral disputes and petitions than other systems, as candidates may challenge the validity of the votes cast, counted, or rejected in various polling stations or constituencies. This may create a heavy burden on the judiciary and other dispute resolution mechanisms to handle and resolve these cases in a timely and fair manner. Moreover, some of these cases may involve complex legal issues that require interpretation and application of the Constitution and other laws. This may pose challenges for the judges and lawyers involved in these cases, especially if they lack adequate expertise or experience in electoral matters.
For instance, in the 2017 Presidential Election Petition, Raila Odinga of the National Super Alliance (NASA) filed a petition challenging the declaration of Uhuru Kenyatta of the Jubilee Party as the President-elect by the Independent Electoral and Boundaries Commission (IEBC). The petition raised several issues such as the hacking of the IEBC server, the transmission of results, the validity of forms 34A and 34B, and the compliance with constitutional and legal principles.
The Supreme Court, in a majority decision of four judges against two, annulled the initial results declared by IEBC and ordered a repeat election within 60 days, citing irregularities and illegalities that affected the integrity of the election. This was the first time in Africa that a court nullified a Presidential Election. While the decision was hailed by some as a landmark for judicial independence and democracy, it was criticized by others as a judicial coup or political interference. This shows how the difficulty of resolving electoral disputes and petitions can create legal pitfalls and have significant implications for the political stability and governance of the country.
6. The potential for political instability and violence
The popular vote system may create a polarized and tense political environment that may trigger or escalate political instability and violence. This may happen if some candidates or their supporters refuse to accept or respect the election results or resort to violence or other unlawful means to challenge or overturn them. This may also happen if some regions or communities feel aggrieved or dissatisfied with the election outcome or perceive it as unfair or illegitimate. This may lead to protests, riots, clashes, or even secessionist movements that may threaten the peace and security of the country.
A vivid example of this scenario occurred in the 2007 election when incumbent President Mwai Kibaki was declared the winner amid accusations of rigging by his main rival Raila Odinga. The disputed result sparked violent clashes along ethnic lines, especially in opposition strongholds such as Kisumu and Nairobi’s slums. More than 1,000 people were killed and about 600,000 were displaced in the post-election crisis. The violence only subsided after a power-sharing agreement was brokered by former UN Secretary-General Kofi Annan.
7. The impact of external factors on the election outcome
The popular vote system may be influenced by external factors that may affect the election outcome in ways that are beyond the control of the candidates or the voters. Some of these factors may include natural disasters, pandemics, economic shocks, social media, foreign interference, or diaspora voting. These factors may have positive or negative effects on the election process and results depending on how they are managed or exploited by various actors.
In the 2017 Presidential Election, social media played a significant role in shaping public opinion and mobilizing voters. However, it also became a platform for spreading misinformation, propaganda, and hate speech. Some reports also alleged that foreign actors, such as Cambridge Analytica and Facebook, were involved in manipulating the online discourse and influencing voters’ choices. This shows how external factors such as social media and foreign interference can affect the integrity and credibility of the popular vote system.
8. The possibility of a tie or a close margin
The popular vote system may result in a tie or a close margin between the leading candidates, especially if there are many candidates in the race or if there is no clear frontrunner. This may create uncertainty and confusion over who is the winner or whether a run-off election is required or not. This may also create room for disputes and challenges over the accuracy and validity of the vote counts or margins. Moreover, a tie or a close margin may reduce the legitimacy and authority of the elected President, as he or she may not have a strong mandate or support from the majority of the people.
A clear example of this scenario occurred in the 2013 election, when Uhuru Kenyatta of the National Alliance (TNA) narrowly won the presidential poll with 50.07% of the vote, barely breaking past the halfway mark required for an outright win. His main rival, Prime Minister Raila Odinga of the Orange Democratic Movement (ODM), got 43.31% of the vote, and challenged the outcome in court, alleging widespread fraud and irregularities. The Supreme Court upheld Kenyatta’s victory, but Odinga refused to concede and called it a travesty of justice. The close and disputed result created tension and division in the country, and raised questions about Kenyatta’s legitimacy as he also faced charges of crimes against humanity at the International Criminal Court over his alleged role in the post-election violence in 2007.
9. The challenge of forming an inclusive and representative government
The popular vote system may make it difficult for the elected President to form an inclusive and representative government that reflects the diversity and interests of the Kenyan people. This may happen if some candidates or their supporters boycott or reject the government or demand concessions or rewards for their support or participation. This may also happen if some regions or communities feel excluded or marginalized by the government or its policies or programs. This may affect the effectiveness and performance of the government and its ability to address the needs and aspirations of the people.
A relevant example of this scenario occurred in the 2008 Grand Coalition Government, which was established by a power-sharing agreement, signed by then President Mwai Kibaki and Prime Minister Raila Odinga of the Orange Democratic Movement. The agreement was meant to end the post-election violence and create a unity government, but it also created challenges for governance and representation. The coalition cabinet was bloated with 40 ministers and 52 deputy ministers from different political parties, making it costly and difficult to coordinate. The two sides often disagreed on key issues such as constitutional reform, land policy, corruption, and security, leading to deadlock and mistrust. Some regions, especially in the north and coast, felt neglected by the central government and demanded more autonomy and resources. The coalition government also faced criticism from civil society and the public for failing to deliver on its promises and for being unaccountable and inefficient.
10. The difficulty of amending or changing the electoral system
The popular vote system may be hard to amend or change, as it is entrenched in the Constitution and requires a referendum to alter it. This may make it challenging to address or resolve some of the pitfalls or problems that may arise from the system or to adopt a different system that may be more suitable or preferable for the Kenyan context. Moreover, any attempt to amend or change the system may face resistance or opposition from some actors who may benefit from or prefer the current system.
A point of reference for this is the Constitution of Kenya (Amendment) Bill, 2020, popularly known as the Building Bridges Initiative (BBI), which was initiated by President Uhuru Kenyatta and former Prime Minister Raila Odinga as a way of addressing some of the issues and grievances that emerged from the 2017 election. The BBI proposed several constitutional amendments, including changing the structure of the executive, increasing the representation of marginalized groups, and enhancing devolution and service delivery.
However, the BBI faced legal challenges from various civil society groups, political parties, and individuals who argued that it violated the basic structure and principles of the Constitution and that it was not a genuine popular initiative as required by Article 257 of the Constitution. The High Court and later the Supreme Court agreed with these arguments and declared the BBI unconstitutional, null and void. The ruling effectively blocked the planned referendum on the BBI and dealt a major blow to the proponents of the constitutional amendment.
These are some of the legal pitfalls of the popular vote election in Kenya that may pose a threat to the people’s will. They call for urgent attention and action from all stakeholders involved in the electoral process, including the government, the IEBC, political parties, candidates, civil society, media, and voters. Only by addressing these legal pitfalls can Kenya ensure that its elections are credible, transparent, inclusive, and peaceful.
NULLITY OF THE PEOPLE'S WILL IN KENYA: A Case Study of the 2007 and 2017 Presidential Elections
To illustrate the legal pitfalls of a popular vote election in Kenya, this section will critically analyze two specific cases: the 2007 Presidential Election and the 2017 Presidential Election. The section will examine the causes and consequences of nullifying the people’s will in these two different cases and draw some lessons and implications for future popular vote elections in the country.
The Legal Pitfalls and Consequences of the 2007 Presidential Election in Kenya
The 2007 Presidential Election was held on December 27, 2007. The main contenders were Mwai Kibaki of the Party of National Unity (PNU) and Raila Odinga of the Orange Democratic Movement (ODM). The election was marred by several irregularities and malpractices, such as delayed or missing ballot papers, faulty or tampered voting machines, inflated or altered vote counts, or biased or compromised electoral officials.
The result was a close and controversial race, with Kibaki being declared the winner by a narrow margin of about 230,000 votes out of over 10 million votes cast. However, Odinga rejected the result and claimed that he had won by over one million votes based on his own tally. The dispute sparked a wave of violence and protests across the country, along ethnic and political lines. The crisis was only resolved after international mediation and a power-sharing agreement between Kibaki and Odinga in February 2008.
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The 2007 presidential election demonstrated the legal pitfalls of a popular vote election in Kenya. First, it showed the lack of a legal framework to address the issues that arose during and after the election. There was no clear or independent body to investigate or adjudicate the allegations of fraud or irregularities. There was also no clear or acceptable way to verify or recount the votes or to resolve the dispute peacefully.
Second, it showed the potential for voter manipulation and fraud. There were reports of widespread bribery, intimidation, coercion, misinformation, or impersonation by both sides to influence or alter the outcome of the election. Third, it showed the challenge of ensuring equal representation and minority rights. There were accusations of gerrymandering, regionalism, or ethnic favouritism by both sides to gain an advantage or marginalize their opponents in the election.
The consequences of the nullity of the people’s will in the 2007 Presidential Election were devastating. It led to a loss of life, property, and livelihood for many Kenyans. It also damaged the trust and confidence in the electoral system and the political institutions. It also deepened the divisions and tensions among different communities and groups in Kenya.
The Legal Pitfalls and Consequences of the 2017 Presidential Election in Kenya
The 2017 Presidential Election was held on August 8, 2017. The main contenders were Uhuru Kenyatta of the Jubilee Party and Raila Odinga of the National Super Alliance (NASA). The election was conducted under a new legal framework that was enacted after the 2007 crisis, such as the Constitution of Kenya, 2010, the Elections Act, 2011, and the Independent Electoral and Boundaries Commission (IEBC) Act, 2011.
The new framework aimed to address some of the legal pitfalls of a popular vote election in Kenya, such as creating an independent and credible electoral body, introducing biometric voter registration and identification, enhancing transparency and accountability in vote counting and transmission, and providing mechanisms for dispute resolution and judicial review. However, despite these reforms, the 2017 election faced several challenges and controversies, such as technical glitches, hacking allegations, security threats, boycotts, and protests.
The result was another close and disputed race, with Kenyatta being declared the winner by about 1.4 million votes out of over 15 million votes cast. However, Odinga challenged the result in court and claimed that he had won by over eight million votes based on his own tally. The Supreme Court annulled the result on September 1, 2017, and ordered a fresh election within 60 days. However, Odinga boycotted the fresh election on October 26, 2017, and called for civil disobedience. Kenyatta won the fresh election by over seven million votes out of about nine million votes cast, but his victory was not recognized by Odinga or his supporters.
The 2017 Presidential Election demonstrated the legal pitfalls of a popular vote election in Kenya. First, it showed the limitations of the legal framework to address the issues that arose during and after the election. Despite the new reforms, there were still gaps and ambiguities in the electoral laws and regulations that created confusion and controversy. For example, there was no clear definition or criteria on what constitutes a valid or invalid election, or how to conduct a fresh election in case of an annulment. There was also no clear procedure or timeline on how to file or resolve electoral petitions, or how to enforce or implement court orders.
Second, it showed the potential for voter manipulation and fraud. There were reports of widespread hacking, tampering, or interference with the electronic voting system by both sides to influence or alter the outcome of the election. There were also reports of voter intimidation, violence, or suppression by both sides to deter or prevent their opponents from voting. Third, it showed the challenge of ensuring equal representation and minority rights. There were complaints of unfair or unequal allocation of constituencies, votes, or resources by both sides to favour or disadvantage certain regions, communities, or groups in the election.
The consequences of the nullity of the people’s will in the 2017 Presidential Election were severe. It led to a prolonged and costly legal and political stalemate that paralyzed the country for months. It also increased the polarization and radicalization of society along ethnic and ideological lines. It also eroded the credibility and authority of the electoral body and the judiciary.
THE ROLE AND CHALLENGES OF THE JUDICIARY IN POPULAR VOTE ELECTIONS IN KENYA: A Review of Three Presidential Election Petitions
The legal validity of a popular vote election in Kenya has been challenged several times in the courts, especially after the adoption of the 2010 Constitution, which introduced a new electoral system and a presidential threshold of 50%+1 of the votes cast. The most notable cases are the Presidential Election Petitions of 2013, 2017 and 2022.
1. Raila Odinga & Others v Independent Electoral and Boundaries Commission & Others (2013) eKLR
This was the first Presidential Election Petition under the 2010 Constitution, filed by Raila Odinga, who lost to Uhuru Kenyatta by a narrow margin of 50.07% to 43.28%. Odinga alleged that there were widespread irregularities and malpractices in the conduct and transmission of the results and that Kenyatta did not meet the constitutional threshold. The Supreme Court dismissed the petition, holding that Kenyatta was validly elected and that the electoral commission had substantially complied with the law. The court also upheld the principle of verifiability as a key component of a free and fair election and emphasized the need for transparency and accountability in the electoral process.
2. Raila Odinga & Another v Independent Electoral and Boundaries Commission & Others (2017) eKLR
This was the second Presidential Election Petition filed by Raila Odinga, who again lost to Uhuru Kenyatta by 54.27% to 44.74%. Odinga claimed that there was a systematic and deliberate manipulation of the results by hacking into the electronic system of the electoral commission and that Kenyatta did not meet the constitutional threshold. The Supreme Court nullified the election, finding that there were illegalities and irregularities that affected the integrity of the election and that the electoral commission failed to comply with the constitutional and legal requirements. The Supreme Court ordered a fresh election within 60 days, which was boycotted by Odinga, leading to Kenyatta’s re-election with 98.26% of the vote.
3. Raila Odinga v William Ruto & Others (2022) eKLR
This was the third Presidential Election Petition filed by Raila Odinga, who lost to William Ruto by 50.49% to 48.85%. Odinga alleged that there was massive fraud and rigging in the election and that Ruto did not meet the constitutional threshold. He also relied on the dissenting opinions of four out of seven commissioners of the electoral commission, who disowned the results. The Supreme Court upheld Ruto’s victory, rejecting all the allegations and evidence presented by Odinga. The Court found that Ruto had met the constitutional threshold and that the electoral commission had carried out the verification, tallying and declaration of results in accordance with the law.
These cases demonstrate that the courts in Kenya have played a significant role in determining the outcome and legitimacy of popular vote elections, as well as setting standards and principles for conducting free and fair elections. However, they also raise questions about the independence and impartiality of the judiciary, the credibility and competence of the electoral commission, the respect for and compliance with the rule of law, the impact on political stability and peace, and the representation and participation of diverse groups in governance.
ALTERNATIVE ELECTORAL SYSTEMS FOR KENYA: A Comparative Analysis of Proportional Representation, Mixed-Member Proportional and Single Transferable Vote
In light of the legal pitfalls of a popular vote election in Kenya, it is worth considering alternative electoral systems that can address some of these challenges and enhance the representation and participation of the people. Some of these electoral systems are Proportional Representation (PR), Mixed-Member Proportional (MMP) and Single Transferable Vote (STV). This section will discuss the advantages and disadvantages of each system as an electoral system for Kenya while examining some of the legal pitfalls of a popular vote election in Kenya and how each electoral system can possibly address them.
1. Proportional Representation (PR)
Proportional Representation (PR) is an electoral system where seats are allocated to parties or candidates based on their share of votes in an election. This system can ensure that every vote counts and that every group is represented proportionally in the parliament or government. However, this system can also create fragmentation and instability, as it can lead to multiple parties or coalitions that may have difficulty forming a majority or consensus.
It has been observed that one of the legal pitfalls of a popular vote election in Kenya is the possibility of electoral fraud and irregularities, especially in the transmission and tallying of votes, which was the case in the 2017 Presidential Election that was annulled by the Supreme Court after finding that the electoral commission had not followed the law. According to a report by the Independent Electoral and Boundaries Commission (IEBC), there were "irregularities and illegalities" in the transmission of results, such as missing forms, tampered seals, and unauthorized access to servers. A PR system can reduce the incentives and opportunities for such fraud, as it does not depend on a single winner-take-all outcome, but rather on the aggregation of votes across different constituencies or regions. A PR system can also enhance the transparency and accountability of the electoral process, as it requires a clear and verifiable method of converting votes into seats.
Another legal pitfall of a popular vote election in Kenya is the potential for marginalization and exclusion of certain groups or regions, especially those that are ethnically, religiously, or politically diverse. This can lead to social and political polarization, violence, and instability, as seen in the aftermath of the 2007 Presidential Election, which triggered a deadly ethnic conflict. A PR system can promote the representation and participation of these groups or regions, as it can ensure that they have a voice and a stake in the parliament or government. A PR system can also foster dialogue and cooperation among different parties or candidates, as it can encourage them to form coalitions or alliances based on common interests or policies.
However, a PR system also has some challenges and drawbacks that need to be considered. One of them is the possibility of fragmentation and instability, as it can result in a large number of parties or candidates competing for seats, some of which may have extreme or radical views. This can make it difficult to form a stable and effective government, as it may require complex and lengthy negotiations among different factions or groups. A PR system can also weaken the accountability and responsiveness of the government, as it may dilute the link between voters and representatives, and create confusion or ambiguity about who is responsible for what.
It is noted that while a PR system may offer some benefits for Kenya’s electoral system, such as enhancing representation, participation, transparency, and accountability, it may also pose challenges, such as creating fragmentation, instability, confusion, and ambiguity. Therefore, the choice of an electoral system should be based on careful consideration of various factors and stakeholder interests.
2. Mixed-Member Proportional (MMP)
Mixed-Member Proportional (MMP) is an electoral system where some seats are allocated by popular vote and some seats are allocated by PR. This system can combine the advantages of both systems, such as ensuring majority rule and minority representation. However, this system can also create complexity and confusion, as it can involve different types of ballots or constituencies that may have different rules or outcomes.
One of the legal pitfalls of a popular vote election in Kenya is the risk of ethnic violence and political instability, especially when the election results are disputed or contested, case in point, the 2007 and 2017 Presidential Elections that led to deadly clashes and court challenges. According to a report by the Kenya National Commission on Human Rights (KNCHR), more than 1,000 people were killed and 600,000 displaced in the post-election violence in 2007-2008 and according to a report by the International Crisis Group (ICG), the 2017 election crisis was marked by "police brutality, intimidation, protests and low voter turnout". An MMP system can reduce the likelihood of such violence and instability, as it can provide a more inclusive and representative government that reflects the diversity of the country. An MMP system can also encourage political parties to cooperate and compromise, as they may need to form coalitions or alliances to secure a majority or a working government.
Another legal pitfall of a popular vote election in Kenya is the possibility of under-representation or over-representation of certain groups or regions, especially those that are marginalized or disadvantaged. This can lead to social and economic inequality, resentment, and alienation, as some groups or regions may feel that they have no voice or influence in the government. According to a report by the World Bank, Kenya has one of the highest levels of income inequality in Africa, with a Gini coefficient of 0.44 in 2016. In 2021 a report by the United Nations Development Programme (UNDP) ranked Kenya 152nd out of 191 countries in the Human Development Index (HDI), with significant disparities across regions and counties. An MMP system can address this problem, as it can ensure that every vote counts and that every group or region has a fair share of seats in the parliament or government. An MMP system can also enhance the accountability and responsiveness of the government, as it can provide a clear link between voters and representatives, and create incentives for representatives to serve their constituents.
However, an MMP system also has some challenges and drawbacks that need to be considered. One of them is the possibility of complexity and confusion, as it can involve different types of ballots or constituencies with different rules or outcomes. For example, in an MMP system with two votes, voters may have to choose between a party and a candidate, or between a local and a national representative. This can create difficulties for voters to understand how their votes affect the overall results, and for candidates to campaign effectively. Another challenge is the possibility of inconsistency or discrepancy, as it can result in different levels of representation or influence for different groups or regions. For example, in an MMP system with overhang seats, some parties may end up with more seats than their proportion of votes would warrant. This can create unfairness or imbalance in the parliament or government.
Therefore, an MMP system may not be a simple solution for Kenya’s electoral challenges, but rather one of the possible alternatives that can address some of them. An MMP system can combine the advantages of both popular vote and PR systems, but it can also create complexity and confusion. It is perhaps worth noting that the choice of an electoral system depends on various factors, such as the political culture, history, and context of a country and ultimately, the most important thing is to ensure that the electoral system is fair, credible, and democratic.
3. Single Transferable Vote (STV)
Single Transferable Vote (STV) is an electoral system where voters rank candidates in order of preference in a multi-member constituency. This system can ensure that voters have more choice and voice in selecting their representatives and that candidates have more incentive to appeal to a broader range of voters. However, this system can also create difficulty and delay, as it can involve multiple rounds of counting or transferring votes until a quota is reached.
One of the legal pitfalls of a popular vote election in Kenya is the possibility of electoral fraud and manipulation, especially in the transmission and tallying of votes as was the case in the 2017 Presidential Election. An STV system can reduce the incentives and opportunities for such fraud, as it does not depend on a single winner-take-all outcome, but rather on the aggregation of voter preferences across different candidates. An STV system can also enhance the transparency and integrity of the electoral process, as it requires a clear and verifiable method of converting ranks into seats.
Another legal pitfall of a popular vote election in Kenya is the potential for marginalization and exclusion of certain groups or regions, especially those that are ethnically, religiously, or politically diverse, which can lead to social and political polarization, violence, and instability, as seen in the aftermath of the 2007 Presidential Election that triggered a deadly ethnic conflict. An STV system can promote the representation and participation of these groups or regions, as it can ensure that they have a voice and a stake in the parliament or government. An STV electoral system can also foster dialogue and cooperation among different candidates or parties, as it can encourage them to seek support from a wider range of voters.
However, an STV system also has some challenges and drawbacks that need to be considered. One is the possibility of difficulty and delay, as it can involve multiple rounds of counting or transferring votes until a quota is reached. For example, in an STV system with five seats, each candidate needs to get at least 16.67% of the votes to be elected. If no candidate reaches this quota in the first round, the lowest-ranked candidate is eliminated and their votes are transferred to their second preferences. This process continues until all five seats are filled. This can create complexities for voters to understand how their votes affect the overall results, and for election officials to conduct the count accurately and efficiently.
Another challenge is the possibility of inconsistency or discrepancy, as it can result in different levels of representation or influence for different candidates or parties. For example, in an STV system with five seats, a party that gets 50% of the votes may end up with only three seats if their votes are distributed evenly among their candidates. On the other hand, a party that gets 25% of the votes may end up with two seats if their votes are concentrated on their top two candidates. This can create unfairness or imbalance in parliament or government.
Therefore, an STV system may also not be a simple solution for Kenya’s electoral challenges, but rather one of the possible alternatives that can address some of them. An STV system can ensure that voters have more choice and voice in selecting their representatives and that candidates have more incentive to appeal to a broader range of voters. But it can also create difficulty and delay in counting or transferring votes until a quota is reached.
Each of these systems has its own advantages and disadvantages, and none of them is perfect or flawless. However, they can offer some solutions to some of the problems that plague the popular vote system in Kenya.
RECOMMENDATIONS FOR IMPROVEMENT OF THE POPULAR VOTE ELECTION IN KENYA: A Legal and Political Perspective
Based on the critical analysis above, this article proposes recommendations for improvement in the popular vote election in Kenya. These recommendations are:
While these recommendations are not exhaustive or definitive, they can provide some direction and guidance for improving the popular vote election in Kenya. They can also contribute to enhancing the representation and participation of the people and reducing the nullity of the people’s will.
CONCLUSION
The popular vote election in Kenya has been a source of legal and political controversy and conflict, as evidenced by the three Presidential Election Petitions that challenged the validity and legitimacy of the election results. While courts have played a significant role in determining the outcome and legitimacy of the election, as well as setting standards and principles for conducting free and fair elections, they have also faced criticism and suspicion over their independence and impartiality, and their decisions have not always been respected or implemented by the parties involved. The electoral body has also been accused of incompetence and bias and failure to ensure the integrity and transparency of the electoral process. These legal pitfalls have undermined the representation and participation of the people, and have threatened the will of the people.
In light of these challenges, this article has considered alternative electoral systems that can address some of these legal pitfalls and enhance the representation and participation of the people. These systems include Proportional Representation, Mixed-Member Proportional, and Single Transferable Vote. While each of these systems has its own advantages and disadvantages, and none of them is perfect or flawless, they can offer some solutions to some of the problems that plague the popular vote system in Kenya.
The article has also proposed some recommendations for improvement in the popular vote election in Kenya. These recommendations include reviewing and revising the electoral laws and regulations, strengthening and supporting the electoral body and the judiciary, enhancing voter education and awareness, and adopting or experimenting with alternative electoral systems. While these recommendations are not exhaustive or definitive, they can provide some direction and guidance for improving the popular vote election in Kenya. They can also contribute to enhancing the representation and participation of the people and reducing the nullity of the people’s will.
This article has examined the legal challenges that threaten the legitimacy and fairness of the popular vote election in Kenya. It has also proposed some possible solutions and recommendations to overcome these challenges and ensure that the popular vote election in Kenya truly reflects the voice and choice of the people. The people deserve to have a say in who governs them and how they are governed, and this right should not be undermined by legal loopholes or political manipulation. The popular vote election in Kenya is not a lost cause, but a work in progress that requires constant vigilance and improvement.
Advocate I Certified Professional Mediator (CPM) I A.I Governance, Tech Law, Data Privacy & Protection, Environmental and Election Law I Green Energy, Climate Finance & Carbon Credits Policy Consultant.
1 年Good read. You have articulated the election issues well