As the “direct exercise of sovereignty” behemoth continues to pick up speed, and the government appears to be in virtual slumber, I want to address one of the misconceptions about the October 26 election which is partly the philosophical justification for the “direct sovereignty” proposition.
The exponents of the direct sovereignty argument have premised it primarily on the basis that the 38 per cent voter turnout in the October 26 election was evidence that the larger majority of Kenyans (72 per cent) refused to delegate their sovereignty to the winning candidate. It is then argued that by virtue of Article 1(2) of the Constitution, this “boycotting majority” is now entitled to exercise sovereignty directly since the President, having been elected by the “voting minority”, is illegitimate.
While this route is fraught with numerous constitutional landmines, my focus here is not on the constitutional foundations of the proposition or lack thereof, but on the factual foundation of the argument being propounded. No one can dispute that there was low voter turnout in the repeat elections.
Without any doubt, the calls for voters to boycott elections, coupled with recorded instances of intimidation in some regions to stop voters from going to the polls, did bear some of the fruit NASA intended. Of a registered vote base of 19.6 million people, only 7.6 million came out to vote.
On the face of it, this looks like a rejection of Jubilee and an endorsement of the boycott call by the majority of voters.
This argument, however, fails to appreciate several factors. Firstly, Kenyan voter turnout in the last four general elections has averaged at about 75 per cent of the registered voters.
It can therefore be reasonably presumed that with or without a boycott, 25 per cent of Kenyan voters, about 5 million voters would have stayed away from the polls. Consequently, even without considering other factors, it is clear that of the 14.7 million probable voters a majority of slightly over 50 per cent came out and voted for the President. This position is reinforced when one looks at the number of voters who voted for President Uhuru Kenyatta.
The difference between the people who voted for Uhuru on August 8 and those who voted on October 26 is a mere 750,000 voters.
Secondly the legitimacy of the win becomes more obvious when one considers that in repeat polls or by elections, voter turnout dramatically drops. Nothing evidences this more than the just concluded Kitutu Chache by-election where the turnout was a mere 37 per cent without any boycott calls.
Elsewhere in the continent where repeat polls have been called in presidential elections, the most recent being Ghana and Liberia, the average voter turnout was below 50 per cent. It is therefore plausible that in Kenya’s repeat poll, even without a boycott call, the turnout would have dropped way below the traditional 75 per cent.
Finally, no one doubts that a significant number of Kenyans stayed away from the polls not necessary in answer to the boycott calls, but due to fear of attacks if they did vote. Kenya’s indelible ink requirement is a dead giveaway of voting. In many informal settlements voters could not dare be seen with a colored pinkie.
They therefore just stayed away from voting altogether. I do not raise these issues to demean the effect of the boycott. The reduced turnout especially outside of what is now christened Luo Nyanza sends a message that any government must take note of. My argument is that this turnout narrative has been mischievously upgraded and given more legitimacy than the facts permit.
Truth be told, Uhuru did get the endorsement of the majority of voters who would generally vote. But the reaction to the boycott does tell a worrying story. Once we are done with the elections, the issue that must occupy the person who is finally sworn in as president must be how to increase political, not so much legal legitimacy, during their tenure. It will be difficult because there are many who will wish to continue to feed the non-legitimacy monster. It is not impossible and ultimately that is what good leadership is about.
- The writer is an Advocate of the High Court of Kenya