The disenfranchisement dilemma: How the ghost of electoral injustice is haunting the political class


By Joshua Koome

There are no magic words on paper. Like other people in the world, Kenyans must be determined enough to create the future they want. A future anchored on justice, good governance, and the rule of law, among other values, codified in Article 10 of the Constitution.[i] Big election losers will tell you that a scrutiny of the previous elections conducted in Kenya has demonstrated everything non-compliant with the jealously guarded doctrine of justice:[ii] That justice is for the peasant as well as for the palace. The big question has always been, in whose eyes should this justice be seen through? In Kenya, the claims of ethnicisation of electoral conflicts have been rampant,[iii] concomitant with a dark history and recurrence of political violence and intolerance.[iv] In this piece, I will first seek to interrogate the normative content of the phraseology used in the title of this post. Later, the piece shifts its focus to demonstrating how the said 'ghost' haunts and persecutes the political class by analysing three ostensible critical indicators.

The concept of ghosts remains embedded in numerous religions and traditions in human societies.[v] In ancient Greek mythology, the concept of ghosts was not alien. Ghosts were mainly construed as spirits that played different roles in impacting the physical world. Ideally, the Greeks had identified three categories of spectral beings.[vi] They included those who died and were not given the proper rituals and burial ceremonies, those who died in an untimely manner or immaturely, and finally, those who died due to deliberate acts of violence. In a nutshell, the ghosts would appear for revenge or, on the flip side, to give comfort and guidance.[vii]From this inspiration, I interrogate the doctrinal import of the concept and how it can address the rampant claims of electoral injustices. My good Professor Ambani usually has a natural inclination and predisposition to address the alumni of our great school as 'the living dead' and urges them to watch over us. I shelf this train of thought and now interrogate the three essentials that can illustrate how the said ghosts are haunting the political class.

Firstly, since electoral justice, among other things, demands fairness in the media industry regarding the projection of candidates and giving them unbiased coverage, we are yet to experience the full consequences in instances where we did not heed this clarion call. One may not know the particular consequences, but they are inevitable in cases of breach. I bet Kenyan political leaders who wield a lot of power can and will always make 'adjustments' after securing the win. Albeit not having a clear legal framework for non-partisan media coverage during campaigns, this fundamental position has anchorage in the Constitution of Kenya, the Elections Act, and other relevant statutory instruments. Article 34 of the Constitution,[viii]provides for the freedom of media. This by no means connotes absolute enjoyment. Article 33(2),[ix] encapsulates a claw back clause that sets the limitations. The foregoing was interrogated in the cases of Ramesh Thapar vs. State of Madras [1959] SCR 578 and Express Newspaper & Others vs. Union of India [1958] SC 578, where the courts took judicial notice of the fact that the trend in the world was making the state to desist from taking actions which are tantamount to interference to the freedom of the media. The two cases were cited and rightly endorsed in the Kenyan case of Christopher Ndarathi,[x] clearly reinforcing the idea of cross-pollination of jurisprudence among various jurisdictions. Despite this position of law, one should take cognisance of the prevailing political environment in Kenya and the consequential implications. During the campaigning period, Dr. Ruto, the then Deputy president, slammed different media houses by claims of bias and favouring the Right Honorable Raila Odinga regarding media coverage.[xi] If indeed there was an infringement of acceptable journalistic practices of non-partisanship, then the ghosts of electoral justice might haunt the aggressors for non-compliance.

Secondly, the arguable disenfranchisement of the electoral management body is still causing friction among the political divides.[xii] During the Jamhuri Day celebrations, the President conferred different presidential awards to key players in the just concluded elections causing the public to raise some eyebrows. The Chairperson of the IEBC, Mr. Chebukati, got the Elder of the Order of Golden Heart award, the highest award any civilian is competent to receive, among others. Paradoxically, the 'Cherera four' became engulfed in the murky, dirty waters. The Commissioners resigned, leaving only commissioner Irene Masit to face the tribunal. Irene Masit had cited instances of interference and coercion asking her to resign even before the Muchelule-led tribunal began its work.[xiii] In the long run, the proceedings culminated with a recommendation to remove Commissioner Irene Masit. I need not say that the same illustrates that the ghosts are not yet done with Kenya.

Thirdly, the recent calls (9 March 2023) by Right Honorable Raila Amollo Odinga for countrywide mass action[xiv]evokes many legal issues while unveiling the ugly political grotesque deviling our nation. The right to assemble, demonstrate, picket, and present petitions to the public authorities is deeply entrenched in our Kenyan Constitution; concomitant with other provisions, the above article empowers the people to take radical actions to address their plight. The said provisions capture the aspirations of Kenyans and the democratic zeitgeist among the people.[xv] However, From the political standpoint, it may be construed that the opposition is determined to frustrate the government in retaliation for the continued persecution of the opposition allies or what some political pundits have termed courting attention.'[xvi]Professor Githu Muigai, in his book Power, Politics and Law, argues that some political elites' proposals and moves may have ulterior motives, albeit having some altruistic value at face value. [xvii] I must, however, say that interrogation of the motives is not my business in this post, and I leave that to the court of public opinion.

[i] Constitution Of Kenya, 2010, Article 10.

[ii] Otieno, R. (2023) Azimio to pray for electoral justice - raila, People Daily. <Available at: https://www.pd.co.ke/news/azimio-to-pray-for-electoral-justice-raila-169542/ (Accessed: March 21, 2023).>

[iii] The ethnification of electoral conflicts in Kenya (2020) ACCORD. Available at: https://www.accord.org.za/ajcr-issues/ethnification-electoral-conflicts-kenya/ (Accessed: March 21, 2023).

[iv] Sekou Toure OtondiPhD Candidate (2022) Kenya's history of election violence is threatening to repeat itself, The Conversation. Available at: https://theconversation.com/kenyas-history-of-election-violence-is-threatening-to-repeat-itself-76220 (Accessed: March 21, 2023).

[v] Pu, Muzhou, ed. Rethinking ghosts in world religions. Vol. 123. Brill, 2009.

[vi] Nancy Hendrick October&nbsp;27, &nbsp;2021 (2021) Why ghosts gave comfort to the ancient greeks, Zócalo Public Square. Available at: https://www.zocalopublicsquare.org/2021/10/27/ancient-greek-ghosts/ideas/essay/ (Accessed: March 24, 2023).

[vii] Nancy Hendrick October&nbsp;27, &nbsp;2021 (2021) Why ghosts gave comfort to the ancient greeks, Zócalo Public Square. Available at: https://www.zocalopublicsquare.org/2021/10/27/ancient-greek-ghosts/ideas/essay/ (Accessed: March 24, 2023).

[viii] Constitution Of Kenya 2010, Article 34.

[ix] Ibid.

[x] Christopher Ndarathi Murungaru v Standard Limited & 2 others [2012] eKLR

[xi] Awich, L. (2022) Ruto Slams Media Houses for being biased in coverage, The Star. The Star. Available at: https://www.the-star.co.ke/news/2022-06-04-ruto-slams-media-houses-for-being-biased-in-coverage/ (Accessed: March 24, 2023).

[xii]Otieno, B. (2023) Tower of babel as electoral officials call it a day after controversial poll, Health. The Standard Media Group. Available at: https://www.standardmedia.co.ke/health/national/article/2001464255/tower-of-babel-as-electoral-officials-call-it-a-day-after-controversial-poll (Accessed: March 24, 2023).

[xiii] IEBC commissioner Irene Masit says she is being threatened to resign by today (2022) YouTube. Available at: https://youtu.be/4w4NMYk8sVU (Accessed: March 24, 2023).

[xiv] Raila declares official start of countrywide mass action from today (2023) Nation. Available at: https://nation.africa/kenya/videos/news/d-day-raila-gives-way-forward-on-planned-demos-4152270 (Accessed: March 10, 2023).

[xv] Mutua, M. (2023) Kenya's political eclipse: Part II, Nation. Nation. Available at: https://nation.africa/kenya/blogs opinion/opinion/kenya-s-political-eclipse-part-ii-4146010 (Accessed: March 9, 2023).

[xvi]Kikechi, B. (2023) From rallies to mass action: What is Raila Odinga's strategic plan?, Health. The Standard Media Group. Available at: https://www.standardmedia.co.ke/health/politics/article/2001467853/from-rallies-to mass-action-what-is-raila-odingas-strategic-plan (Accessed: March 10, 2023).

[xvii] Githu Muigai (2022). Power, Politics and Law: Dynamics Of Constitutional Change in Kenya, 1887-2022. 

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