MWANGI: Refusal to accept election results is an offence? Tell it to the birds

That there is panic in the air is not in doubt. The coming electoral contest appears to have scared the establishment stiff – so much that some of the proclamations being made by leading establishment figures are hardly believable, the latest focusing on security.

Media reports indicate that the government intends to criminalise refusal to accept the poll results. That such a proposal can even be considered shows just how entrenched anti-democratic thinking is among the ruling classes. It is a throwback to the old dictatorial constitutional order of the 1980s, a statement of how little the country’s new constitution matters to the current government.

In any democratic society governed by the rule of law, it is expected that people would sometimes dispute the results as announced by-election officials. What is criminal, then, can only be the manner in which one opts to go about their protest. A blanket condemnation of disagreement with electoral results would not only be unconstitutional, but also exceedingly difficult to enforce as it borders on attempting to control people’s thoughts and speech.

Once the results have been announced, those unsatisfied with the results would be expected to seek redress from the courts. That is exactly what happened, for example, when the opposition led by Raila Odinga petitioned the Supreme Court in 2013 as they sought to overturn the victory of President Uhuru Kenyatta. It would be illegal and counterproductive to try and criminalise the right of aggrieved persons to express themselves and seek such redress.

The government proposals also criminalise calls for mass action. It is such calls that led to the massive destruction and deaths that followed the December 2007 presidential contest between the then incumbent, former president Mwai Kibaki, and Odinga. That criminalisation of protest, however, is highly contentious as well. The constitution of Kenya endorses peaceful protest, and the move is likely to be seen as an attempt to cut back on civil liberties.

In addition, announcing of “incorrect results” is criminalised, perhaps in order to avoid a scenario where the opposition announces its own tallies and compares these with the official figures. That can hardly be a something for the police to determine, however, and to criminalise disputing of figures can easily lead to accusations that the police have taken sides.

Not that they have any record of neutrality in such matters, anyway. Ever since independence, the police and other security agencies in Kenya and elsewhere in the region have been accused of being oppressive agents of the regimes in power. And despite greater openness in our day, there are still widespread reports of extrajudicial killings, torture, and other reprehensible practices by security agencies.

What, then, should the police look out for if they are to curb any incidents of violence in the run-up to elections and the immediate aftermath? Some of the other items on the police list of offences are a lot more credible, such as incitement, disruption of the counting of votes, arson, vandalism, and interference with government installations such as power lines.

Given the impact that electoral violence in Kenya could have on the whole region, the East African Community ought to have taken a greater interest in the unfolding events, but this is unfortunately not the case. This is how the dictates of diplomatic etiquette often override the best interests of regional citizens. Indeed, election observer missions are many times simple rubber stamps that provide much-needed legitimacy to rogue leaders. That must not be allowed to continue.

The August poll in Kenya will be a litmus test for the whole region. With the region’s largest economy and a citizenry that has come to cherish their hard-won freedoms, it will be interesting to see whether – in the event of electoral malpractice – the police will succeed in stopping any significant protests.

But that doesn’t have to be so. In fact, if our countries were to practice greater transparency in politics and justice in resource allocation, it wouldn’t be necessary to try and have the police at every street corner. It’s expensive, and removes national resources from more worthy causes. And it is a sign of failed leadership and governance.