PS Monica Juma Briefs Nairobi-Based Envoys

Excellencies, Ambassadors and High Commissioners;

Members of the Diplomatic Corps;

Colleagues from the Ministry of Foreign Affairs;

Good afternoon; 

  1. I welcome you to this 12th briefing session for members of the Diplomatic Corps based in Nairobi. Today’s engagement should have been on the modalities of the swearing in which would have been in another 5 days. Instead, it will focus on the state play in terms of the envisaged fresh Presidential Election, scheduled for 17th October 2017.

Excellencies, Ladies and Gentlemen,

  1. When I addressed this gathering on 16th August 2017 I indicated our understanding of what the August 8th General Election meant for us. It was a demonstration of a watershed moment in our political history. It was a transitional test and a clear validation of the Kenyan Constitution promulgated in 2010. During the same briefing, I stressed that the elections, while consolidating our democratic credentials, tested the capacity and maturity of the established, and or reformed, institutions to discharge their mandate efficiently and effectively. I also indicated that we were keen to engage in sharing lessons learnt as a basis for improving our electoral management in the future.
  1. In line with this, I led a delegation to engage with the AU PSC on 24th August 2017 – during which in a review of about 7 elections from across the African continent, there is a steady and deepening development of democratisation values and practices. I want to thank the African Union for their continued solidarity with Kenya and our electoral process.  To-date a team of no less than 16 observers is still in Kenya accompanying this process.  We look forward to the successful completion of their mission and report.  We are confident that its conclusions and recommendations will go a long way in the improvement of our electoral management.

Excellencies, Ladies and Gentlemen

  1. Since then, I dare say that our democracy has evolved further. We have been through another watershed phase.  We have been through a second presidential petition since our last constitution.   As you are aware, on 11th August 2017, the IEBC declared results of the Presidential polls where H.E. Uhuru Kenyatta was declared President elect and H.E. William Ruto declared Deputy President elect, with a margin of more than 1.4 million votes.  Following the announcement, and consistent with the provisions of Article 140(1) of the Constitution, the opposition, led by Hon. Raila Odinga and Running mate Hon. Kalonzo Musyoka, after an initial phase of declaring that the court was not an option, and following enormous pressure from both local and international actors, launched a petition on 19th August 2017.
  1. In compliance with section (2) and (3) of article 140, the Supreme Court, therefore, determined the petition and made a ruling on 1st September 2017. On this day, Kenya’s political history was a top story globally. Our Supreme Court in a majority of 4 decision (with 2 dissenting opinions) invalidated the election of President Uhuru Kenyatta.  In its ruling, of some 193 words, the Court without reference or calling out on the voting process or participation of the citizens, who engage in voting to determine their sovereign will determined that the;
  1. a) “the 1st respondent (The IEBC), failed, neglected or refused to conduct the Presidential election in a manner consistent with the dictates of the Constitution and inter alia the Elections Act, Chapter 7 of the laws of Kenya.”
  1. b) that the irregularities affected the integrity of the Presidential Election and
  1. c) that the court found no misconduct on the part of the 3rd
  1. Significantly, the Supreme Court then directed that the “the 1st Respondent to organise and conduct a fresh Presidential Election in Strict conformity with the Constitution and the applicable election within 60 days of this determination under Article 140(3) of the Constitution.
  1. As you are all aware, the Supreme Court did not provide the detailed judgement of the Majority bench and decided that it would issue this within 21 days of the determination. We are still awaiting this decision (which in effect eats into the statutory 60 days of preparation for the election). Nonetheless, let me do some reflection on it in terms, even without the benefit of the full judgement.
  1. Undoubtedly, the ruling was and remains baffling in terms of the options that the Supreme Court opted for. Considering that the raison detre of an election is to determine the will of the people – one would have expected a focused attention on whether this will was manifest and whether any irregularities were significant to impact it to the extent of changing the results. Seemingly, this was not an issue and maybe that is the reason that the Supreme Court did not opt for a recount decision.  From observations across the country, we know that ballot papers are still intact decision the most since it based nullification on irregularities which is new in our constitutional jurisprudence. The ruling seems to have centred on the transmission of the results to the election tallying centre rather than in the voting and counting processes at the polling stations.
  1. No doubt this determination will remain a matter of curiosity for legal and political analysts and practitioners beyond Kenya. This is so because for the 1st time in the history of election petitions, (and there are only three of this kind – where a victory has been annulled) a determination has been made whose core concern is NOT the will of the people but the processes of transmission. We heard a lot about signatures or lack thereof, of forms 34A or 34B but the decision of a voter is registered on a ballot paper where each one of us checks off, not on a transmitting device or a collation form where an officer would make a mistake or deliberately distort, with an IEBC that is constrained by law in terms of whether it can change any mistake. A likely interpretation of this judgement is that numbers of voters and the will of the people do not matter! And if this is the case the fundamental question for the democratic project is, can a court, any court, overturn the will of the people on the basis of a technicality?
  1. The second significant decision was the determination that the 3rd Respondent E Uhuru Kenyatta did not commit any electoral misconduct. This is a critical ruling because there has been huge propaganda and allegations that the President and his team were intent on, and engaged in, rigging and subverting the vote. In other words, this determination reaffirms what has been the commitment of the President to a free, fair and credible election – but more fundamentally his commitment to run his campaign as governed by the rule of law.

Excellencies, Ladies and Gentlemen 

  1. Yesterday as I perused through the ongoing commentaries, I was caught by one that observed as follows: “When in the future, many years today we look at Kenya today we shall look at President Uhuru in awe and wonder.”
  1. Within hours of the determination by the Supreme Court, President Kenyatta and his Deputy went out to a very restive country in general and his support base in particular. In a clear and firm manner, he urged peace, peace, peace and calm among all Kenyans.  He indicated that although he did not agree with the decision of the Supreme Court, he respected it; urged all Kenyans to be ready for a repeat election; urged the IEBC to announce an election date; and called on his supporters to reaffirm his victory.
  1. These pronouncements, this clarity by the President calmed the country and even as some pockets of opposition in the country went about celebrating the decision, the entire country was country – with no incident of violence. By Monday Kenya was functioning normally.
  1. Undoubtedly the 1st September ruling is of great magnitude. As consistently affirmed in my past briefings, Kenya has built a great resilience in systems, democratic governance with a society that has progressively matured.

Excellencies, Ladies and Gentlemen,

  1. Even after the ruling, Kenyans conducted themselves with the highest degree of maturity and responsibility by maintaining peace while at the same time noting that they are ready to go back to the ballot box for the second time round and to exercise their democratic right.
  1. On the 4th of September 2017, the IEBC announced a new date for the repeat of the Presidential elections, which is now scheduled for 17th October 2017. There will be no fresh nominations and two Presidential candidates will be on the ballot, namely H.E President Uhuru Kenyatta and Hon. Raila Odinga. The Commission has begun reviewing critical operational and procedural requirements for the conduct of the elections and has called for patience and understanding.
  1. The President and his party have welcomed this decision and by all indications begun preparations for the election. On the other hand the opposition has in the meantime come out to criticize the credibility as well as the announcement by IEBC.  For those following the evolving of this electioneering period, you will know that the opposition has contested, protested and sought to change or derail the process from the beginning.
  1. This latest move by opposition is worrying since the announcement was within the timelines set by the court. It is worth noting that the Commission cannot deviate from the order given by the Supreme Court. We know that the Supreme Court did not question that ability of the IEBC to conduct elections and while making its ruling (we would assume) knew and understood the competencies of IEBC and that it would be able to carry out this mandate within the timeline provided.
  2. Seemingly, the Supreme Court decision seems to have triggered a number of election petitions. From less than 50 last week – by yesterday we had 116 petitions against elected members. Including 4 at senatorial level, 3 women representatives, 12 gubernatorial petitions were launched yesterday alone.
  1. Needless the cost of the ongoing processes to the Kenyan tax payer is colossal. Starting the market reaction to the Supreme Court decision, on 1st to the slowing of economic performance. The increased petitions are also going to take out of the exchequer. Thankfully our economic fundamentals remain sound and we hope that our friends and partners will not create panic because the country is calm and functioning normally.
  1. Another worrying observation has been the effort – somewhat subtle at times, to try and do what one of the observers was calling “nuancing” their observation. It seems that some people want to explain away the ruling of the Supreme Court.  What we are witnessing is history in the making and we hope that stereotypes steeped in narratives that seem to have defined Kenya and Africa do not obviate what is happening in Kenya – which I think is by all definitions unprecedented. The IEBC has conducted an election under less than normal circumstances; our security forces have conducted themselves in a level of professionalism that is commendable.  We saw them being taunted, some being attacked while they exercised significant restraint.  But we hear murmurs about police brutality and attacks; unverified allegations of violence against civilians. Interestingly, I am yet to hear anyone condemning attacks on the security actors in their efforts to ensure rule of law and public safety.
  1. The above notwithstanding, there have been many positives on the Kenya General election process. These, combined with the observations of the missions add to the credence in our democratic processes. The August elections and its after processes provide an opportunity for all of us to reflect on how the electoral process went and how, in the future, we can deal with challenges in a better manner.
  1. It is critical that as we enter into the second round of the elections that as partners and friends of Kenya you assist us as follows:
    1. Underscore the need to observe the rule of law and respect for our constitutionalism, and this includes especially providing space for the mandated institutions to prepare to deliver a free, fair and credible election.
    2. In this regard, I think that our international partners need to encourage the various arms of government to exercise due diligence in allowing the others to function. In the run up to the August 8th election, we saw our judiciary close to running the IEBC – actually almost forgetting that this is a constitutionally independent body.  Now that the Supreme Court has made a determination and directed the reorganisation of an election, it is critical that the IEBC is provided with the space to execute this task.
    3. Engaging with the opposition is also critical – to ensure that we go through this phase without generating tensions and creating uncertainties or disruptions to Kenyans lives. We have had calls that could distort the school examination calendar, we have had calls that could all together plunge this country into a constitutional crisis, we have heard calls that could precipitate a civilian coup.

Excellencies, Ladies and Gentlemen, 

24.   In conclusion, I wish to revisit the principles we continue operating under the principle of rule of law; the independence and integrity of key institutions and the importance of accepting the will of the people. With regard to the rule of law and independence and integrity of institutions, let me single out the following, which will continue to play a critical role even as we prepare for the Presidential re-run scheduled for next month. In this regard,

25.   I wish to assure all your governments of this administration’s commitment to adhere to all tenants of the rule of law. Kindly convey this unrelenting commitment to your capitals and I wish to take this opportunity to once again welcome all those that are interested to send observer missions to commence preparations for this – within the laid down laws and regulations.

  •  The Security Apparatus: The Security apparatus have continued to ensure that all Kenyans are safe and free from harm despite challenges occasioned by Al-Shabaab intermittently, in some parts of the country. They will continue maintaining peace and security, and I can without hesitation confirm to you that the government is ready to continue providing optimum security during this period and through the repeat elections, and after. We hope our performance endeared confidence in our capabilities.
  • The Judiciary: The Judiciary will continue playing their independent role. Their commitment to finalise with election petitions by January 2018 is welcome. We hope that the big picture of this will continue being relevant.
  • The IEBC: It is our sincere hope that the Electoral Commission will receive the needed space and support from all the stakeholders to enable them to conduct the 17th October election.

Excellencies, Ladies and Gentlemen,

26.   Looking forward and as we gear towards the repeat of the polls, I want to reiterate that the Jubilee Government is keen to implement its agenda as listed in the Manifesto. The agenda seeks to consolidate gains made in economic growth over the last 5 years. The commitment to the people of Kenya is to continue working with all Kenyans under the vision centred on the three critical pillars of transforming lives, the Society and nation at large.

27.    I also want to reflect the current business environment which has remained favourable even during the electioneering period. The reality of democracy in every country is that there are lows during elections such as the one witnessed in the Nairobi Securities Exchange as well as the money market. Investors and the business community should remain confident about the Kenyan economic environment. This is because Kenya has one of the most progressive constitutions and the Government will always be on hand to ensure safety of all Kenyans, investors, and foreign nationals resident in Kenya as well as respect the will of the people.

  • As friends of Kenya, we request you to signal to your capitals that our democracy is functioning well. Kenyans are moving forward with their day to day activities. We are striving to enhance and entrench our democratic credentials as well as the independence of all our institutions.
  • I also request you to message that Government of Kenya continues to seek the same support as that rendered prior and after the August 8th elections. This support will consolidate efforts geared towards ensuring that we deliver during the repeat of the Presidential elections. In addition, we are open to receive International Observers once again since we believe that they have a role to play in enhancing democratic processes and at the same time increasing domestic confidence in the electoral process. This process as you know will be managed by IEBC.

I thank you for your attention.