To avert chaos, Jubilee and NASA must play by the election rules

The alarm bells sounded by the EU and the National Cohesion and Integration Commission have brought the issue of the electoral violence into focus again. This week I examine NASA's position that a peaceful election is contingent on the credibility of the election.

There's little clarity on a credible election but we can decipher their view from the court cases they have filed and ongoing debates such as dead voters on the register. My reading of it is that they want a perfect election. Anything less will be a 'sham election' which, we are told, will inevitably lead to chaos.

This narrative however needs a lot more nuanced review. Even forgetting the impracticability of a perfect election, it should be clear that violence is not caused by imperfect elections otherwise all our elections would be violent seeing as each election has had its own fair share of challenges. This perspective also implies that violence is the automatic result of electoral processes.

People, politicians and citizens alike, stand by as 'sham' elections turn on an orgy of violence. Obviously, this is nonsense. Violence is perpetrated by human agents. In my view, our focus while attempting to predict outbreak of violence after the election should lie in understanding and predicting elite behaviour, in particular, their willingness to play by the rules of the game which they themselves have set.

Unlike the pre-election violence of 1992 and 1997 which relates to contestations of the right to vote to pre-determine outcomes, post-election violence, like the one we experienced in 2007/8 relates to how political elites handle electoral outcomes, especially defeat.

The Kriegler Commission found that the 2007 election was a rigging contest in which both sides refused to play by the rules. Beyond ballot-stuffing on both sides, the Kibaki regime refused to honour the IPPG rules on the selection of electoral commissioners before the election, while the Opposition refused to go to court after the declaration of the results. Neither choice was inevitable; they were made by people.

Faced with electoral defeat, politicians make a choice either to accept or reject the results. If they decide to reject them, they choose to go to the courts or the streets. Choices. After the 1992 and 1997 elections, Opposition leaders filed election petitions knowing that they couldn't go far. A smarter choice was to attempt to change the rules of the game which they tried through the IPPG before 1997 election and made small wins.

The biggest wins have however resulted from the change of the Constitution in 2010. Hence, the NASA brigade has been able to force changes in the institutions before we go into the election including replacement of electoral commissioners and changes in electoral laws. They continue to challenge the institutions through court cases.

Perhaps, the most important point is that so far, each side has had some victories and some losses. While Jubilee tends to win in the legislature, NASA has been winning in the Judiciary. Both parties will therefore go into the election somewhat dissatisfied with the process. Inevitably, some things will go wrong but unless there is a major failure in the process, our focus should be on how the politicians will react to the outcome.

The biggest risk is if either Jubilee or NASA refuse to accept the results in case of a loss. If Jubilee reject the results and refuse to hand over power, the result would be catastrophic. However, they have signaled their willingness to accept defeat. The second scenario in which violence unfolds is if NASA lose the election, refuse to accept the result and decide to contest their loss on the streets. What's more, we have reason to believe it seeing as they have done it before. I find it curious though that they are happy with the courts to resolve pre-election disputes but not post-election ones. Choices.

- The writer is a researcher and analyst in Nairobi. [email protected]