2.1 Introduction

The first term of reference of the Independent Review Commission (IREC) is: “[to] analyze the constitutional and legal framework to establish the basis for the conduct of the 2007 elections and to identify any weaknesses or inconsistencies in the electoral legislation”. In trying to meet its obligation under this mandate, IREC commissioned a study on the analysis of the constitutional and legal framework for elections in Kenya (attached as annex 2.A) and solicited the views of members of the public, legal and constitutional experts and the ECK at public hearings, technical workshops and formal hearings. Contributions were also drawn from in-house research papers, written submissions and the IREC commissioners’ own analysis of the constitutional and legal framework. The audit of the legal and constitutional framework guiding the electoral system in Kenya sought to measure how adequately this framework meets the standards of the key electoral and democratic principles of universal suffrage, equal suffrage, free and fair elections, secret vote and direct suffrage. More importantly, we sought to measure how adequate it was for purposes of conducting a free and fair election in Kenya in 2007. Whereas the adequacy of the constitutional and legal framework with respect to the various activities involved is dealt with in the separate chapters, we try to address the general question as to whether the constitutional and legal framework for the conduct of the 2007 elections was adequate for conducting a free and fair election.
2.2 Relevant international standards

The international standards relating to elections and electoral processes are derived from a number of international instruments that describe the various components of civil and political rights and freedoms. They are the key principles universally accepted by the family of nations which believe in democracy as the basis for good governance in each State. The standards are mostly at two levels, global (or universal) and regional.

The universal standards are found in the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of Persons with Disabilities (CRPWD). For Kenya the regional instruments include the African Charter on Human and People’s Rights (ACHPR) (although the relevant article 13(1) is not explicit in its definition of the right to participate in free and fair elections), the Organization of African Unity (OAU – now the AU) Declaration on the Principles Governing Democratic Elections in Africa (2002) and most recently the African Charter on Democracy, Elections and Governance (2007). Kenya is a party to all the treaties cited above except to the African instruments of 2002 and 2007, but she is a member of the African Union (AU), which adopted these two instruments. Kenya has a legal obligation to enforce the rights in the instruments to which she is party.

The international standards describe the rights associated with voting and participation in governance. Article 21 of the UDHR states that:

“1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

…

3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”

The ICCPR is more descriptive and states as follows at Article 25:

“Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 (this is the non-discrimination clause that prohibits discrimination on the basis of race [which includes ethnicity], colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status) and without unreasonable restrictions:

(a)
To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b)
To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c)
To have access, on general terms of equality, to public service in his country.”

The key election elements that can be derived from articles 21 of the UDHR and 25 of the ICCPR are:

1) Periodic elections (meaning that elections are held at regular intervals)

2) Genuine elections (meaning that voters can participate freely in elections and that results are free of manipulation or fraud)

3) Standing for elections (the right to participate as a candidate)

4) Universal suffrage (that everyone who meets the acceptable minimum conditions has the opportunity to vote)

5) Voting on the basis of the right to vote

6) Equal suffrage (the principle that each vote carries the same weight)

7) Secrecy of the vote

8) Free expression of the will of the voters

Other electoral rights and freedoms stipulated in the UDHR and the ICCPR include the right to the freedoms of expression, to hold opinions, to receive and impart information and ideas through media and to freedom of peaceful assembly and association. Article 20 of the ICCPR provides for prohibition of “Any advocacy of national, racial [includes ethnic] or religious hatred that constitutes incitement to discrimination, hostility or violence”.
2.2.1 Equal participation by special groups

Additional to the general provisions in the UDHR (articles 19 and 20) and the ICCPR (articles 19, 21 and 22), especially the non-discrimination clauses, other thematic and specialised international treaties provide for the specific inclusion in the electoral process of special groups. It is in this regard that the ICERD (in article 5(c)) prohibits exclusion on the basis of race from participation in political processes, including voting and standing for election on the basis of universal suffrage. The CEDAW (in article 7), on the other hand, makes a similar case for women and also provides for affirmative action measures to breach inequality gaps where necessary. The affirmative action measures would facilitate proportional representation on the basis of gender. The CRPWD, not in force for Kenya in 2007 but ratified by Kenya in 2008, also guarantees to persons with disabilities political rights, including the right to participate fully in political processes on an equal basis with others. Article 29 specifically requires States parties to facilitate the enjoyment by persons with disabilities of the rights associated with elections including: Article 21 of the CRPWD also emphasises the rights, freedoms and liberties relating to elections.
(i) “Ensuring that voting procedures, facilities and materials are
appropriate, accessible and easy to understand and use;
(ii) Protecting the right of persons with disabilities to vote by secret
ballot in elections and public referendums without intimidation,
and to stand for elections, to effectively hold office and perform all
public functions at all levels of government, facilitating the use of
assistive and new technologies where appropriate.”
2.3 The constitutional and legal framework of the electoral process in Kenya

The Kenyan laws that have relevance to elections include: ƒ The Constitution of Kenya ƒ The National Assembly and Presidential Elections Act (Cap. 7 of the Laws of

Kenya) ƒ The Local Government Act (Cap. 265) ƒ The Registration of Persons Act (Cap. 107) ƒ The Election Offences Act (Cap. 66) ƒ The Kenya Broadcasting Corporation Act (Cap. 221) ƒ The Penal Code (Cap. 63) ƒ The Public Order Act (Cap. 56) ƒ The Societies Act (Cap. 108) (this Act provided the regulatory framework for the

political parties in 2007 – it is referred to in chapter 4 and analysed in annex 2.A) ƒ The Political Parties Act, 2007 (this Act was not in force at the time of the 2007 elections)
The Constitution of Kenya

The Constitution entrenches the protection of a number of fundamental rights and freedoms in chapter V. A number of these rights are associated with elections and they include the right to liberty (section 72), right to secure protection of the law (section 77), the freedoms of conscience (section 78), expression (section 79), assembly and association (section 80) and movement (section 81). Of great importance for special groups is the protection from discrimination on the basis of race, tribe, place of origin or residence or other local connection, political opinion, colour, creed or sex (section 82).
The right to vote

Interestingly the Constitution does not entrench the right to vote and to stand for elections. Article 32(2), which is sometimes erroneously thought to describe the right to vote, provides only for the entitlement to vote for those who are registered as voters in a particular constituency.
Inclusion of persons with disabilities

Closely related to the need to provide for equal participation for all in the electoral process is the issue of including persons with disabilities. Section 34 of the Constitution touches on the question of the full participation in all electoral processes of persons with disabilities. It provides that “blindness or other physical cause” that prevents reading shall not be a barrier to election as a member of the National Assembly, but it simultaneously bars anyone who is not “able to speak … the Swahili and English languages well enough to take an active part in the proceedings” from election. This might be interpreted as discrimination against an individual with a speech defect. People with disabilities have been effective members of parliament around the world and should not be excluded from Parliament by such provisions.
2.4 The political system in Kenya

The political and government system in Kenya are provided for in chapters II, III and IV of the Constitution. Chapter II describes the executive arm of government and provides for procedures relating to the election of the President. Part III provides for Parliament and describes matters relating to elections of members of the National Assembly; it also establishes the Electoral Commission of Kenya and stipulates its functions. Part IV establishes the Judicature. Kenya is a multiparty state with a mixed parliamentary and Presidential system. The President of Kenya is both head of State and head of government. The political system in Kenya has been and is still one of the big political debates in Kenya, having continued for the past seventeen years. How it evolves will be determined by the constitutional review process that will soon recommence after a lull of some three years.
2.4.1 Presidential elections

The election of the President is provided for under section 5 of the Constitution. This section stipulates the eligibility criteria for presidential candidates and the manner in which a presidential candidate may be nominated for election. The section also sets down procedure relating to the conduct of the presidential election. Section 6 lays out the procedure to be followed with regard to the filling of a vacancy in the office of the President. Sections 7 and 8 provide for the procedures to be followed after a person has been declared duly elected to the office of the President. Section 9 lays down the duration of the term of office of the President and also limits the number of terms that a President can serve to two. Section 10 provides the procedure for determining any question whether a person has been validly elected as President.
2.4.2 Functions of the Electoral Commission of Kenya (ECK)

Sections 42 and 42A of the Constitution set out the functions of the Electoral Commission. These are:

ƒ To determine and review constituencies’ boundaries and names at eight-to-ten- year intervals. The function similarly applies with respect to the local authorities. Section 10 of the Local Government Act (Cap. 265) also gives power to the ECK to divide local authorities into various electoral areas and prescribe their boundaries and names.

ƒ To register voters, and maintain and revise the voter register

ƒ To direct and supervise the presidential, parliamentary and local government elections

ƒ To promote free and fair elections

ƒ To promote voter education throughout Kenya

ƒ To carry out any other functions as may be prescribed by Parliament

The Constitution further confers power on Parliament, under sections 42(10) and 42A(e), to provide for the orderly and effective conduct of the ECK’s operations and business. It also provides for the election of the President and members of the National Assembly, and for citizenship, which provides the basis for recognition as a voter.
2.4.3 The National Assembly and Presidential Elections Act

The National Assembly and Presidential Elections Act (Cap. 7) is the operational statute that governs the electoral process for presidential and parliamentary elections. The Act elaborates the functions of the ECK as provided under section 42A of the Constitution by adding:

1. Matters relating to the registration of electors (see chapter 5 of this Report)

2. The regulations relating to the protocols on election procedures (see chapters 5 and 6 of this Report)

3. The code of conduct for campaigns

4. Procedures relating to elections after a vacancy

5. Election expenses

6. Dispute resolution

2.4.4 The Kenya Broadcasting Corporation Act (Cap. 221)

This is an Act of Parliament important to the electoral process as it covers the public medium of communication that reaches most Kenyans. The Act defines the “campaign period” as the period between the initiation of an election under the relevant law and the eve of election day. It then provides that the public media shall, during the campaign period, maintain a fair balance in the allocation of broadcasting hours as between different political viewpoints. In undertaking this responsibility, the Corporation (KBC) is to consult with the ECK. The allocation of free airtime is to registered political parties participating in the election.
2.4.5 The Election Offences Act (Cap. 66)

The Act deals with various electoral offences and provides for penalties with respect to the electoral process. The offences include:

* Electoral offences in part II of the Act: including falsification of information with respect to registration of electors, fraudulent acts with respect to nomination papers; the sale and purchase and supply of the ballots and voter’s cards, manufacturing/importation of fake ballots; unauthorised printing of the electors’ register; falsification by election officials of records during polling; abetting of the abuse of the process of assisting voters by electoral officers; deliberate miscount of ballots with the intent of influencing the final result ;and allowing malpractices that breach the secrecy of the vote. These offences are punishable by a maximum of five years’ imprisonment.

* Corrupt practices in part III: the offences here include attempts to vote more than once or in the name of other registered electors; employment of acts of undue influence (including threats, force, violence, spiritual injury, damage, trick etc.) to get others to vote a particular way or not to vote; compelling a person to refrain from running for a particular office or to step down as a candidate; bribery of voters with money or anything else so as to influence their decision on who to vote for; facilitating campaign propaganda at polling stations on polling day; printing, publishing or distributing advertisements, placards or posters which refer to any election and do not bear on the face the names and addresses of the printer and publisher; and prohibits the transportation of electors. These offences are punishable by a maximum of five years’ imprisonment.

The prosecution of offences relating to corrupt practices under part III of the Electoral Offences Act can be instituted only with the permission of the Attorney-General.
2.4.6 The Public Order Act (Cap. 56)

This is one of the two Acts amended as a result of the Intra-Parties Parliamentary Group (IPPG) negotiations in1997. The amendment to the Public Order Act removed the need for licences and permits with respect to the holding of public meetings. The only current requirement for persons intending to hold campaign meetings is to notify the officer commanding the police station nearest the area of campaign. The notice must be given not less than three and not more than fourteen days before the meeting. The police can refuse permission if they have good reason to believe that there will be a breach of the law or disperse the meeting if a breach of law takes place during it. The Act also provides that no person shall be restricted from holding public meetings on account of political beliefs or opinions. This is one of the IPPG wins that sought to curb the misuse of public offices and resources to crush any opposition to incumbency.
2.4.7 The Penal Code (Cap. 63)

Most election malpractices related to campaigns are also prohibited under the Penal Code. Offenders could be prosecuted under any of these laws. Violence, assault, carrying of offensive weapons in public places and bribery, among other offences, fall under the Penal Code

Under section 34A(5) of the National Assembly and Presidential Elections Act, the Electoral Commission has powers to designate “any of its officers to conduct any prosecution for an offence under this section and the electoral code of conduct and such officer shall for that purpose have all the powers conferred upon a public prosecutor by the Criminal Procedure Code.”
2.5 Efforts to Review the Electoral System in Kenya

Electoral systems are those procedural rules, which govern the transformation of votes to seats in the National Assembly (or any other elected body), so one cannot conduct elections without having some sort of electoral system. A brief general introduction to electoral systems is to be found in annex 2.B, while this section presents various issues related to this topic as it has developed in Kenya over recent years.

The choice of an electoral system should always be based on a careful consideration of a relevant set of criteria, such as they are presented in the annex 2.B. The choice among the various criteria is difficult, because some of them are incompatible and cannot be fulfilled at the same time. The choice also has far-reaching consequence for the way in which the political system develops.

The Mixed Member Proportional (MMP) system was discussed in Kenya as part of the previous constitution review process. MP is a system based on the casting of two ballots, one for a national list of candidates from each of the political parties, one for one of the candidates in one’s single member constituency (like the current First-Past-The-Post system in Kenya). The national/party votes are used to provide for proportional representation in parliament, and the seats obtained in the constituency contexts are deducted from the overall national proportional entitlement of the parties to establish their entitlement of compensatory seats. In this way, the MMP system attempts to secure the best of both worlds, i.e. proportional representation simultaneous with representation of local interest.

The key content of the two electoral system for the National Assembly proposals from the previous constitutional review process was a complicated combination of (1) another set of single-member constituencies (as now), (2) single-member constituencies (the districts were to be used as this second kind of constituencies), each to elect one woman, and (3) representatives of marginalized groups (the Bomas draft suggested 14 such members, to be indirectly elected by electoral colleges of the respective marginalised groups; Wako a more complicated procedure aiming at the same, but also aiming at securing a better gender balance, to be based on lists submitted by political parties and allocated in proportion to votes obtained).

Neither of these proposals has anything to do with MMP. The reason is that there is no attempt to ensure overall proportionality in the allocation of seats and there is also no attempt to ensure that compensatory seats actually go to parties underrepresented after the allocation of constituency seats.

Special seats for specifically identified marginalized groups is complicated to arrange for in a constructive and manageable way. The establishment of a legitimate group of electors is complicated and easily becomes discriminatory; furthermore, such representatives will almost by their very nature be seen as defendants of special interests and might therefore contribute to the increase of the level of political tension. And why should – e.g. – members of trade unions be more entitled to special representation than farmers? Representation of special, deserving interests is more easily achieved through a closed list PR system, where parties can demonstrate their social profile by placing representatives of groups in need of special attention in winnable positions.

Special seats for women is another complicated issue. More equal representation of the two genders is important, and it is well documented that a fair level of representation of women does not go well with FPTP. Also, special seats often entail the perception that those holding them are only second order MPs. Sustainable female representation is primarily seen in countries with list PR, where women – in their own right – can attract additional votes to their parties.

The Case against MMP

Since the early 1990s, there has been a trend in electoral system reform in the direction of MMP. One important reason for this has been that retaining the FPTP/SMDs (single member districts) has been attractive to many incumbent parliamentarians, while many reform-interested parties have been attracted by the idea of approaching overall PR (i.e., at the national level).

This has usually has been attempted by using two different ballots as indicated above. It is, however, also a possibility to use the constituency ballot as the sole basis for allocation of compensatory seats, even though that creates a more difficult decision situation for voters. The attraction of this suggestion is that it makes voting simpler and that it takes away the possibilities for manipulating the system which are discussed below. However, almost all known cases of MMP has operated with two ballots, even though it has been argued that many illiterate and politically less experienced voters might not understand the different reasons for having two different ballots in one election.

However, a traditional MMP system can easily be circumvented by unscrupulous political parties, either by arranging for a more or less informal agreement between two parties, where the expectedly bigger party (A) only presents candidates at the constituency level, while the expectedly smaller party (B) only presents a party list. If supporters and followers of the two parties now vote for Party A in the constituency election and for Party B in the national election (because they are being told to do so), then whatever number of constituency seats Party A gets over and above its proportional share of the total number of seats cannot be deducted from whatever number of compensatory seats Party B is allocated on the basis of its share of the PR votes. Therefore, it’s a win-win situation for A as well as B – at the expense of other parties entitled to compensatory seats on the basis of their share of the national PR votes.

This is exactly what happened in Lesotho in the February 2007 parliamentary elections. The problems following from this circumvention of the 2001 constitutional settlement and the ensuing the parliamentary impasse have created a huge number of political problems in Lesotho since early 2007. A recent High Court judgment only postponed the finding of a proper solution to the complicated political and legal problems, which are now waiting for SADC mediation.

Similar problems arose in the 2005 parliamentary Elections in Albania, even without a formal MoU between the two participating parties, one big, one small, because voters were easily educated to do as their political leaders suggested: Trick the MMP system!

The key point is that the introduction of MMP is not necessarily a good thing. For it to function adequately there must be (1) a strong political party system, with wellestablished norms and traditions, which political parties and leaders adhere to; (2) the legal drafting of constitutional amendments and electoral law changes must foresee all eventualities, but also maintain the basic principles of the system, and (3) a considerable period of adjustment to the new parliamentary system, which will not go well together with Kenya’s traditionally strong presidential system. There is also no need to deny that a new balance between the Presidency and the National Assembly will have to be defined as proportionally elected legislatives function differently from Westminster-style parliaments.

There is no easy solution to the issue of the future electoral system in Kenya (cf. the criteria listed in Annex 2.B), but the main options appear to be these:

(1)
continue with FPTP, but redistribute constituencies (delimitation in the traditional way, by using a GPS-based system, or by employing combination of principles)

(2)
change to a two-round system at the parliamentary (and presidential) level. Will be understandable for voters and will in itself contribute to a further reduction of parties. Constituencies to be redistributed.

(3)
MMP based on one ballot only (which will also require changes to the constituency structure)

(4)
PR (closed list, some kind of gender zipping) at the provincial level. The district level can also be considered for this, as that will allow for smaller distances between voters and representatives.

(5)
PR (with closed list and some kind of gender zipping) at the national level

All five options have advantages and disadvantages, including that the constituency boundary delimitation will be an important element in the first three options. The MMP system is in any case not an obvious choice because of the in-built risks for misuse.

Obviously, several other electoral systems are available, including systems allowing voting for individual candidates and their parties – or individual parties and the alliances they belong to – at the same time (different kinds of so-called double simultaneous voting, DSV). However, the IREC finds that simplicity is of the essence and therefore cannot recommend such systems for use in Kenya yet.
2.6 Concluding remarks and recommendations on the constitutional and legal framework

Kenyan electoral legislation provides the basic framework for conducting elections and did so for the 2007 elections; however, it has a number of gaps and weaknesses that warrant some radical review if it is to provide a solid foundation for the conduct of free and fair elections. The review needs to take into account the need to consolidate the electoral provisions scattered among various statutes, the importance of independent but interrelated activities such as political party election-related activities and the need to have effective enforcement mechanisms for any laws put in place.

1. IREC recommends that the right to vote and to be elected at genuine periodic elections be included in the Bill of Rights in the Constitution (chapter V) and that voting by universal and equal suffrage and by secret ballot should also be guaranteed for all without discrimination. To go hand in hand with this is the right to citizenship which is also important and is not included in the constitution.

2. IREC recommends that section 34(c) of the Constitution be amended so as not to be perceived as discriminatory to any group of persons.

3. IREC recommends that all laws relating to the operational management of elections should be consolidated under one statute.

4. IREC recommends that a separate law be enacted to facilitate the establishment of a special Electoral Dispute Resolution Court to handle appeal matters from the initial stages of dispute resolution by the ECK. These would include matters that cannot be resolved by the ECK, or matters to which the ECK is a party, and post-election disputes, including election petitions. The law should entrench a statutory limit to ensure that election petitions are finalised in good time – a limit of six months should be adequate. The current rules and regulations on the procedures of election petitions should be repealed and replaced with new rules that ensure that petitions are heard in a just and timely manner.

A final reflection

Was it the regulatory framework for campaign supervision and EDR that were deficient, or is it that our institutions of governance have simply failed us?

(Ms Immaculate Njenga-Kassam of IED asked this question during a presentation at one of the technical sessions)

At the public hearings and the technical workshops IREC heard, time after time, cries for societal change by means of statutory amendment. “Change the Constitution to cut down the powers of the presidency.” “Change the Constitution to strengthen the separation of powers.” “Change the Constitution to do away with the pernicious winner-take-all system.” “Change the Constitution to promote devolution of power.” “Consolidate the diverse body of laws governing Kenyan elections.” “Confirm the IPPG arrangement statutorily.” “Have the ECK commissioners appointed by Parliament” – no, “by a multidisciplinary body, not by the President alone.”

Even as we recommend constitutional and legislative changes, it is important that Kenyans honestly asses all the activities relating to the 2007 general elections so as to distinguish those that can be attributed to anomalies, failures and malpractices traceable to gaps or provisions in the Constitution and laws of Kenya from those that can be attributed to a bad culture encompassing impunity, disrespect for the rule of law and institutional incompetence.

It is important for Kenya to realise that change for the sake of change is folly. Change without having established the ill is worse. Unless and until one has made a proper diagnosis, the prescription is unlikely to be efficacious and might well prove fatal. The diagnosis in this instance is extremely complex and it is important that it not be oversimplified. The weaknesses in the Kenyan body politic are complex, caused by the insidious developmental ills of decades of misrule. It is easy for everybody to succumb to the temptation to play God and imagine that with the stroke of a pen what is defective will be made good, that it will be easy to reverse 45 years of post-colonial, stumbling democracy. It cannot be that easy.

Nearly two decades after nominal disavowal of one-party rule (in fact one-man rule), the day-to-day running of the country was until recently left essentially undisturbed. That is still the system of administration that IREC witnessed everywhere, with the image, name and influence of the all-powerful President extending down to the grassroots, where the DC and the galaxy of uniformed and plainclothes agents of the Commander-in-Chief hold unquestioned sway.

It is therefore not surprising that elections too still bear many of the scars of the former dictatorship. Elections under President Moi were not supposed to be free and fair. They were not supposed to be the genuine expression of the choice of free men and women as to their governance. That had been decided for them. Elections were a charade, a form of national grand opera where everybody had to express their support for the Man. Stuffing the ballot box was not a sin. On the contrary, it was good to show how enthusiastic the people of a particular district were in their endorsement of the party and its leader. Nominally that has changed. Nominally elections are now fundamentally different.

Elections in modern-day Kenya are supposed to be not only free and fair, as befits the model democracy of East Africa, but also smooth and slick, befitting one of the most technically advanced countries in sub-Saharan Africa. Sadly, this was very far from what happened in December last year: the 2007 general elections in Kenya were a resounding failure.

What IREC sadly found out was that the ECK and the elections it delivered in December 2007 are no more and no less than the people of Kenya deserved. Whereas Kenyans and their leaders were content to go through the motions of a democratic election, they knew in their heart of hearts that they did not care to guard this democracy. They together with their leaders engaged in unacceptable practices:

* vote-buying and -selling

* unapologetic use of public resources for campaigns

* participation by public servants in campaign activities of certain camps

o ballot-stuffing

o • organising marauding gangs and bully-boys to “zone” regions and electoral areas and intimidate opponents
* using and cheering and uploading hate speech and ethnic sentiments

* demonising opponents and presidential candidates of opponent camps

* using sexist tactics and violence to keep women out of the race

Was this happening because there is no legal framework in place to govern such conduct? Of course not. IREC’s analysis of the laws indicates that there is a legal framework to curb all the above itemised offences. And the true reason of the failure for the 2007 elections was the failure to protect the electoral process from these unacceptable deeds.

Nobody would have dreamt of seriously acting against people in high places, or even highish places. The Attorney-General certainly didn’t lie awake at night worrying about all those crimes being committed with not a finger being lifted to stop them. If the police were concerned about this state of affairs, they were certainly very patient. The ECK, with its powers under the National Assembly and Presidential Elections Act, the Code of Conduct thereto and the Electoral Offences Act which include powers to prosecute never really bit anybody. Public opinion cheered the impunity on so long as it seemed to benefit the side they supported.

In order to start trying to prevent a recurrence of the tragic aftermath of the 2007 general elections, Kenyans, from President to peasant, will have to do an agonising stocktake of where their country stands. They will have to show their commitment to the rule of law, and its equal applicability to all citizens irrespective of economic, social and political or any other belief.

No! The solution does not merely lie in constitutional and legislative changes. The culture of impunity in Kenya needs a fix too. The relevant law-enforcement institutions also need to do their jobs properly.