To some, Raila Odinga’s demand that the presidential results as announced at the polling station be final is pure political chicanery.
Now, let me take you on a small journey that can show you how the elections, and electoral laws, in this country have evolved and how politicians and administrators have become mischievous over the years.
The story of electoral reforms is the sad story of ego, hubris and mischief, where little heed is paid to the long term.
The first time indigenous Kenyans were asked to vote was in March 1957 for the eight African members of the Legislative Council (Legco). It was a mischievous election, to say the least.
What was significant here was that the British decided that not everyone deserved to vote — and those who deserved had to meet some qualifications. If you had attained high school education, owned property and were in the government service you could qualify for a total of three votes. If you were a Kikuyu, you also needed to get a “certificate of loyalty” before voting.
This was known as “qualitative democracy” and had mischievously been imposed by the British as an alternative to “one-man one-vote”.
But in their dash to design the requirements, the British had managed to lock out Tom Mboya, the man they believed was the right post-colonial leader for Kenya. That is why on December 13, 1956 an amending ordnance was pushed through Parliament (then Legco), which extended the meaning of the term “higher education” to also include a “scholarship awarded at tertiary level”.
Mboya had in 1955 received a scholarship to study Industrial Management at Ruskin College, Oxford — a small institution which gave adults with little or no formal education some training.
That came to be known as the “Mboya amendment” and it was brought in to lock out the firebrand Argwings-Kodhek — the lawyer who had annoyed the British by returning with an Irish wife — from winning the Nairobi seat.
It was this poll that saw the election of Tom Mboya (Nairobi), Oginga Odinga (Nyanza Central), Bernard Mate (Central), Daniel arap Moi (Rift Valley), Ronald Ngala (Coast), James Muimi (Eastern), Lawrence Oguda (Nyanza South) and Masinde Muliro (Nyanza North).
In Nairobi, which had about 100,000 eligible African voters, only about 2,500 qualified to vote. The income qualification was set at £120, which was more than double the annual income for Africans. This locked out many and only one in 20 Africans could take part – thanks to the recommendations of the Coutts Report of 1956.
To the chagrin of the colonial government, the elections did not produce the puppets they wanted. It was Mboya who in his maiden speech told the settlers that they had hoped to get the “safest person” to the council “elected according to a franchise that the government itself expressed as the very best…If they are not the type the government expected, I do not think that we are to blame…”
It was this group of elected representatives that started pushing for a one-man one-vote system and opposed what was known as the Lyttelton Constitution, which favoured the minority races — Whites and Asians — making it easier for them to vote.
The next major election was the so-called “Kenyatta Election” of 1961. It was the first time that a common electoral roll was introduced, although some areas were still reserved for the whites. Kanu won a majority, 18 of the common-roll seats, while Kadu won 10.
Kanu had received support from the Luo, Kikuyu Kamba, Kisii, Embu and Meru while Kadu got support from Kalenjin, Maasai, Giriama and other minor tribes. The Luhya were divided between Kanu and Kadu. The Kamba felt marginalised within Kanu and Paul Ngei formed African People’s Party (APP) in 1962. It was a trick he used ahead of the 1963 elections to demand for a ministerial appointment to have his eight MPs rejoin Kanu.
Political scientist Walter Oyugi says this is how “seeds of ethnic calculations in electoral politics” were sown.
Then came the Jaramogi Oginga Odinga crisis, his resignation from Kanu and subsequent formation of Kenya People’s Union. The move saw several MPs defect to KPU hoping to cross the floor without occasioning a by-election as had been the practice when Kadu MPs defected to Kanu.
It was the defection of Achieng Oneko on April 25, 1966 that particularly annoyed Kenyatta. The next day, he told a Kanu Parliamentary Group meeting that anyone who had defected should be expelled from Parliament. But it was unconstitutional and Speaker Humphrey Slade said as much. It was Mboya who proposed that the Constitution should be amended to have those who defected seek a new mandate. On April 28, Parliament was recalled and the amendment rushed through the House.
A politically friendly civil servant Darius Mbela was picked in 1966 to replace Donald Owuor as the supervisor of the “little general elections” of June 12, which saw Kanu win eight senate seats against KPU’s two and 12 House of Representative seats against KPU’s seven. Mr Mbela had introduced a ballot box for each candidate; a perfect way to rig an election. The other interesting aspect was that returning officers were also District Commissioners.
It was Mboya’s way of restricting Odinga’s party to Nyanza.
Kenya had started off with a Senate but in order to abolish it, the government divided the country into 158 constituencies and on December 20, 1966, a Bill was brought to Parliament to merge the two Houses. Although an election was scheduled for June 1968, the MPs passed new laws extending its life by two years. All this was pushed by Mboya — the mastermind of election laws.
Thus, the then Electoral Commission was ordered to create more seats to simply accommodate some personalities and that is how the parliamentary seats were increased. It was the bribe, the bait, which the Lower House was giving the Senators.
Having “finished” Odinga and the Senate, and with Kenyatta having a heart attack in July 1966; focus now turned on Mboya himself. In 1967, a committee was set up to decide about presidential succession and there was a feeling that Mboya was eyeing the presidency.
In 1964, both Mboya and Attorney General Charles Njonjo had helped changed the presidential succession laws by providing that if the president died, the National assembly would pick one of its own for the balance of the term. The idea, then, was, to lock out Jaramogi, who was the vice-president. Now, in March 1968, an amendment was again brought to lock out Tom Mboya — but Parliament, incensed by the Kiambu mafia, revised the Bill to give vice-president six months rule followed by a national election.
Another mischief was when KPU attempted to field candidates for the July-August 1968 local government elections, and the rules were changed. Almost all the KPU candidates were disqualified by the DCs with Njonjo using legal technicalities — some were dismissed on account that the KPU offices were not registered or that the signature of Odinga was faint!
Kenyatta then suffered another mild stroke that May and concerned that Mboya may become a potential candidate, a new clause was introduced increasing the mimimum age of presidential candidates from thirty five to forty. By that time, Mboya was thirty seven! Although this was not passed — Mboya’s biographer David Goldsworthy says Kenyatta was angry and told off Moi and Njonjo – a new clause was passed that each presidential candidate must be nominated by a registered political party. This way, Mboya had no chance, and if he did, it was minimal. On July 5, 1969, Mboya was shot dead in Nairobi.
During the Jomo Kenyatta presidency, three supervisors of elections were appointed – Mr R.A Wilkinson from 1963 to 1965, Donald Owuor in 1965, Darius Mbela in 1966, and Norman John Montgomery from 1967 to 1980 – who oversaw political gerrymandering during their years.
In the Moi presidency, Montgomery was replaced by Zachary Nyarango. In 1987, President Moi appointed J.P Mwangovya as the last supervisor of elections.
It was due to the rigging of the 1979 elections in the Rift Valley that an embarrassed Mr Montgomery decided to resign protesting the management of polls in Baringo, Nandi and Elgeyo Marakwet where President Moi’s henchmen, among them Moi’s personal assistant Nicholas Biwott, were elected unopposed.
Before Kenyatta’s death in 1978, the central government had always made sure government critics did not get elected into parliament. While the provincial administration oversaw rigging and organised joint political rallies for all candidates it became overtly partisan in the 80s.
For instance, during the 1974 elections, it barred government critic J.M. Kariuki from campaigning and he was forced to print some witty posters distributed by his wife: “If this man has done nothing for you don’t elect him,” read the posters. Mr Kariuki won the Nyandarua North parliamentary seat by 16,000 votes against his rivals 3,000.
The first test for Moi came in the September 1983 elections when he decided to decimate all the Njonjo supporters following their fallout. Remember it was Njonjo who had helped Moi get to power with that 1968 clause that gave him powers to succeed Kenyatta.
It was Mr Nyarango who supervised the Njonjo-scare 1983 snap General Election which is, by rigging standards, regarded as one of the worst although it hardly measures up to the 1988 queue-voting elections supervised by J.P. Mwangovya.
In 1988, with Kanu as the sole party, it was then decided that if one got 70 per cent of the votes during the nomination for the March elections, the person would be declared unopposed. Those who controlled the counting also controlled the outcome. This way, Moi was able to determine who got elected leading to a bitter fallout and new clamour for multi-party in 1990.
With the demands, and political upheavals, Moi not only agreed to pluralism but also the formation of the Electoral Commission of Kenya which had constitutional powers. This was led by retired Chief Justice Zaccheaus Chesoni, who was appointed by President Moi together with his commissioners.
The opposition was by then fragmented and failed to push for reforms within the new body. Mr Chesoni would later be blamed by the opposition for rigging the elections in favour of Kanu and for swearing in Moi as president at dawn — to beat Kenneth Matiba’s bid to go to court.
Ever since, there have been demands on how to reform the electoral body and manage elections.
In 1997, following the Inter-Parliamentary Parties Group Bill (IPPG), the number of commissioners was increased to 22 to give political parties a chance to nominate their representatives. Yet again, President Moi won against Mwai Kibaki and the body was accused of being swayed by Kanu.
There were demands for an overhaul of the Constitution in the hope that it would give a level playing field.
It was in 1998 that ECK established its own independent secretariat — and it oversaw the transition from Kanu to Narc. But the ECK did not survive the political pressure that followed the 2007 elections when its Chairman Samuel Kivuitu was in charge of a poll that led to the post-election violence.
This saw the formation of the Kriegler Commission that recommended major changes paving way for the Interim Independent Electoral Commission (IIEC) that was headed by Nairobi lawyer Issack Hassan.
While the Independent Electoral and Boundaries Commission was supposed to cure the ills of past years, the Issack Hassan led team got into trouble with Raila Odinga after he failed to win the 2013 elections against Uhuru Kenyatta and the failure of the Okoa Kenya referendum.
He demanded the removal of the commissioners and after a series of street protests — and some deaths — the government gave in.
At the moment, Raila is demanding that the 290 returning officers should each declare presidential results as final, an issue that is already putting him at loggerheads with Jubilee.
Interestingly, that is how our elections are run.