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Kenya’s Supreme Court has given an impossible deadline for the repeat election

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Raila Odinga

The Kenyan Supreme Court has found that the August 8 presidential election result is invalid. It blames the electoral commission, not the declared winner, Uhuru Kenyatta. Kenya’s leading newspaper praises the decision as a step towards the rule of law, but I am less sure about what this means for the ability of the political establishment to stick to the terms of the country’s constitution.

The Supreme Court has given the country 60 days to hold fresh elections. The time period is in accordance with section 140 (3) of the Constitution, but the court failed to tell the public exactly what the Independent Electoral and Boundaries Commission (IEBC) had done wrong. This leaves Kenya with a compromised commission rerunning an election.

Chief Justice David Maraga noted that the court had previously failed to provide a full judgment on the 2013 elections and this had not been received well. He then did exactly the same. Of course, the court had to provide a judgment on the opposition’s petition within 14 days, as stipulated by the Constitution. This is the period before the president-elect is inaugurated. The court would have sparked a constitutional crisis if it had not made any decision.

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But by not explaining how the IEBC has failed, the court has created a problem. It’s impossible to organize the next election and reform the commission in the time given.

Time pressure

The court gave itself up to 21 more days to deliver its full judgment. This would leave the country with only 39 days before the fresh election. Already, opposition leader Raila Odinga has declared that his coalition will refuse to participate in presidential elections under the current leadership of the IEBC.

But, as a newspaper commentator observes, it’s just not feasible to remove IEBC commissioners without a tribunal, which is then reviewed by parliament. Complicating matters further, three citizens have filed a separate petition to ask the courts to remove certain IEBC officials over their wrongdoing.

Even once the full judgment is handed down within 21 days of the ruling, it probably won’t indicate criminality at the level of individuals. The Supreme Court was asked only to determine the validity of the election overall. Its full judgment can indicate how the process of the election must be improved.

The election was judged to be void because the electoral commission was at fault. This suggests it must change its procedures – and perhaps its personnel – if better elections are to take place. A new election must avoid the errors of the previous one.

Political scholar Gabrielle Lynch explains some of the corrections that have to be made. These include the process for transmitting results, the use of security forces and the uneven use of state resources.

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Few of these suggested corrections will be feasible within the allotted timeframe.

Serious problems

Indeed, the problems are serious. Months before the election was held, the courts ordered the IEBC to stop printing ballot papers, because of claims that the Dubai-based firm Ghurair held too many links to Kenyatta.

The claim against Ghurair was dismissed due to insufficient evidence. But part of the IEBC’s successful defence against the court order was the time pressure of having to hold an election in a few months’ time. If time pressure was a valid reason then, why would it not be now? Why would an even more rushed election be credible?

The murder of the IEBC’s IT manager, Chris Msando, will now be under even closer scrutiny by the media. But even if the crime was directly related to the muddled tallying of votes, there isn’t time before the rerun to find individuals guilty. It is highly unlikely the full Supreme Court judgment will touch upon this tense topic. And that further reduces the credibility of the current IEBC.

Credibility concerns

The wider concerns with the IEBC date back to the “Chickengate” scandal. A UK court found a UK firm had bribed the IEBC (then the Interim Independent Electoral Commission) to get the contract to print ballot papers for the 2010 Kenyan constitutional referendum.

The UK co-conspirators were found guilty. But no-one from the Kenyan side was put behind bars by Kenyan courts. This created mistrust of the IEBC leaders. The current crisis will revive past anxieties like these, but leave no time for meaningful reform.

In Kenyan elections, local witnesses must sign the official forms to say the local tally is accurate. Central tallying organized electronically must then match with these local forms. The election is considered free and fair if this is done properly. The Supreme Court has ruled that both the IEBC as a whole and its chairperson, Wafula Chebukati, are responsible for the failure on 8 August.

Chebukati has refused to stand down. His response doesn’t boost public confidence in the institution. If the public is to trust the rerun, he must go.

Asking for more time

The IEBC should then petition the Supreme Court to give it more time.

It was done before, when the 2013 election was delayed because of the difficulty of implementing aspects of the new Constitution.

Section 86 of the Constitution requires the IEBC to collate the results of an election openly and accurately. At present, it can’t meet this requirement because it does not know what it must do differently from before. The IEBC should therefore depend on Section 86 when it asks the Supreme Court for more time. – Written by Dominic Burbidge, Postdoctoral Researcher, Faculty of Law, University of Oxford

Originally published in The Conversation

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Politics

May Will Be Gone In June Ending Months Of Political Battering And Speculation

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British Prime Minister Teresa May – just under three years into the job – says she will step down on June 7.

This follows a hammering, from both sides of the house, over her clumsy handling of the Brexit process. She has lost countless votes in Parliament over a Brexit deal and was seen by many in politics as weak and dithering. It is ironic that May herself voted to keep Britain in Europe, only to see her career expire as she struggled to make the opposite happen.

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Her heartfelt farewell speech on the steps of Number 10 Downing Street concluded that she had done her best to make Britain a better place not merely for the privileged few, but also for the whole population.

The supreme irony is that her shuffling off of the Prime Minister’s job will see the shuffling in one of Britain’s best known members of the privileged few. Eton and Oxford educated Boris Johnson is likely to step in as leader of May’s Conservative party ahead of what surely is going to be a snap election.   

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Big Shots

Poll Position: The South African 2019 Elections

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May 8, a landmark day for Africa’s second biggest economy. South Africans will cast their votes for the country’s sixth general elections since the dawn of democracy in 1994.

In the run-up to the polls, the country saw flagrant protests in some parts, as disgruntled citizens expressed disapproval of their stifling living conditions. 

In this image, a resident of Alexandra, a township in the north of Johannesburg, squats in the middle of a busy road leading to the opulent precincts of Sandton, Africa’s richest square mile.  

The dichotomy of socio-economic circumstances is an accelerant in one of the country’s poorest communities filled to the brim with squatter camps and the restlessness of unemployment.

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Current Affairs

A Tale Of Two Presidents And One Phone Call To Freedom

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A month before South Africa’s elections, one of the country’s leading political figures exposed a number of his former comrades for corruption with evidence to the Zondo Commission on State Capture. It was box office material, yet just another eventful period in the turbulent life of Robert McBride – guerrilla fighter, policeman and death row prisoner.


Robert McBride has one of those faces full of character that looks like it has endured life as much as lived it. A glance through his tough years of struggle yields a list of reasons why: five years on death row to screams and tears of the condemned; scores of beatings over decades; shooting his way out of hospital; years of the shadowy and violent life of an underground guerrilla fighter.

McBride was born in Wentworth, just outside Durban, in 1963, and grew up amid racist insults and violence. It swiftly politicised him and he was taken into the military wing of the African National Congress where he carried out sabotage with explosives.

Even by the standards of the desperate days of the gun in South Africa, McBride’s political activity is remarkable. In 1986, McBride fought his way out of an intensive care ward in a bizarre rescue of his childhood friend and fellow fighter Gordon Webster. It happened at Edendale Hospital in Durban where Webster lay, with tubes in his body, under police guard.

McBride posed as a doctor, with an AK47 hidden in his white coat; his father, Derrick, was dressed as a priest with a Makarov pistol under his cassock. The Truth and Reconciliation Commission heard, in 1999, that hospital staff cheered them on and held back an armed policeman as the McBrides shot their way out, pushing the wounded Webster to freedom on a trolley.        

Thirty-three-years on, McBride went into battle again for his beliefs, this time with words and documents, against a more insidious and formidable foe than armed police – corruption. He gave evidence before the Zondo Commission, in Johannesburg, springing from his days as head of IPID, the independent police investigators.

He spent more than four days on the stand – longer than most cricket matches last these days. He told of missing police evidence, claims of sinister moves to remove corruption busters and the misappropriation of money, under a cloak of secrecy, by the crime intelligence agencies.    

“People don’t like me because of my anti-corruption stance, their dislike of me I wear as a badge of honour. Those who dislike me for other reasons, it is a free country and you are entitled to your likes and dislikes. I have no problem with you. But wherever I am, I will do my work and will always be against corruption. I understand how corruption affects the ordinary man and means there is so much less to go around,” he says.   

To give a little more context, McBride’s erstwhile job went with unpopularity. The head of IPID is a post that politicians, plus probably more than a few disgruntled policemen, wanted him out of. They ended his contract and he assures me he is going to court to get his job back. His stance may give clues as to why some wanted to see the back of him.

“I have spoken loudly every time I have seen something wrong and raised unpopular issues. Some of the issues we picked up early on was police involvement in cash-in-transit robberies… The looting of police funds, the corruption, the wastage and the leverage, we then began to understand it; the leverage that some policeman have over politicians… Any criminal syndicate that is operating requires police to help them otherwise they will be found out in the normal course of events,” says McBride, the month before the hearing.

“Rogue activity by certain elements in the prosecuting authority, the willingness to prosecute people for non-criminal acts and unwillingness to prosecute when there is a pile of evidence…We will also speak about the abuse of state funds, the abuse of power by the police by negating investigations. Most of our evidence is backed up by court papers, evidence and affidavits,” he says.

Many activists who saw the nasty, ugly, side of the struggle often are the first to come down, hard, when they feel freedoms they fought for are being abused. You could argue McBride, an intelligent thinker, is very much one of them.

You could also argue that McBride has been cut adrift by many former comrades and demonized as the Magoo’s Bar bomber – the 1986 car bomb on the Durban beachfront that killed three and wounded scores. Others, on both sides of the South African struggle, who issued orders, or did worse, are undisturbed and anonymous by their swimming pools. Any regrets? I ask.

“It’s like asking me ‘do I regret living in a free and democratic country’, the answer can’t be yes… We would have preferred that things went differently. If you are in an armed struggle, you are the cause of hurt to other people and as a political activist, as a revolutionary you can defend that and justify it.

“But as a human being, you know that when it concerns other people, it is not the right thing to do to cause the hurt of other people. I have expressed myself as a human being on this, not because I was trying to elicit any sympathy or anything; I have never asked for redemption, I have never asked for forgiveness. Those who know me know what I am about and those who understand the circumstances in the early 1980s when we became active; those who are old enough to remember that was what the circumstances were.”

Those circumstances recede further into the darkness of memory of democratic South Africa every year, yet, in the minds of those who suffered, it stays pin sharp. McBride spent five years on death row, in Pretoria, after being sentenced to the gallows for the Durban bombings.

He reckons the prison hanged more than 300 prisoners in this time. Through the cell door, he heard the condemned screaming and crying as warders dragged the condemned along the passages to their fate. The hanging warders used to bring back the bloody hoods from the gallows and force the next batch of condemned men to wash them.

In May 1990, the sun shone as hope visited death row in Pretoria. The prison management summoned McBride and a group of fellow condemned activists, to the main office at the maximum security prison. Each were given green prison jackets – the garb of special occasions. Warders drove them, in a van, to a distant part of the prison and all feared they were either going to be executed or allowed to escape and shot in the back.

“We were told not to talk and then we were put in this big room with a steel of security around the room and after about 45 minutes the former president (Mandela) walked in and it was the most beautiful sight on earth; the greatest feeling ever and when he walks in, he says: ‘Ah, Robert! How are you!’ As if he knew me forever. It was the most important meeting I had in my life. It was like a God-like environment. He gave us a rundown of negotiations and what can be expected and that we must not worry, we must be patient and sit tight, he knows all of our backgrounds and will do his utmost to get us released and we will never be forgotten.”

It took more than two more years, in the shadow of the noose… until a fateful Friday. September 25, 1992. McBride will never forget the date.

“Round about half past four in the afternoon, I got a call to come to the office, I didn’t know what it was about, and when I came there, the head of the prison said: ‘You have a phone call’. It was my first phone call in prison. On the other end of the line was comrade Cyril Ramaphosa and he says: ‘Hi chief’. I keep quiet and then he says: ‘Monday’. I say: ‘What’s happening Monday chief?’ He keeps quiet, then he says: ‘You are going home!’ There was a bit of a smile you could feel in his voice,” says McBride with a huge smile on his face.

Long after Mandela had completed his long walk to freedom for his country, McBride was to yet again hear the click of a prison key and feel the pain from a warder’s boot.

It was the summer of 1998 and in Maputo, the sea was warm and the prawns were hot. The police in Mozambique picked up McBride, then a high-ranking official in foreign affairs, on alleged gun running charges that appeared to be trumped up to us journalists. We scoured the streets of the capital, for weeks, in search of witnesses.

McBride argued that he was on an undercover operation for the National Intelligence Agency trying to uncover gun runners who were flooding neighbouring South Africa with illegal weapons and fuelling crime; a counter that eventually set him free.

Despite this, McBride spent six months in the capital’s notorious, grim, Machava maximum security prison, where he told me violence was meted out.

I covered that story for many months and came within a split ace of interviewing McBride in his cell. We spent hours plying the Portuguese-speaking warders with beer and the story, through an interpreter, that we were friends visiting from South Africa and we just wanted to say hello. We told them our friend was a big man in South Africa.

“He is a small man now,” smiled back one of the warders icily.

We convinced the guards and as they moved towards the prison doors, keys in hand, our cover was blown. One of the not too bright colleagues from our TV station strolled into the prison waving his press card.

“Hello Chris!” says he. The none-too-pleased prison guards threw us out.

I had to wait more than 20 years for my interview with McBride.

A phrase I always remembered from those many hot, crazy, days in Maputo was a quote we got from the late presidential spokesperson Ronnie Mamoepa when McBride went behind bars yet again.

“He is a tough guy who can look after himself,” said Mamoepa.

The Zondo Commission and scores of corrupt policemen last month found out how tough.  

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