Kenyans to Return to Polls for Presidential Election Re-Run

13 September 2017 Gatwiri M'mbijiwe, Research Assistant, Indian Ocean Research Programme

Background

When the polls closed on 8 August, Kenyans held their breaths as counting began in presidential, parliamentary and county elections. The end of the day marked the second peaceful election since the devastating 2007 vote that killed 1,100 people and displaced 500,000. Uhuru Kenyatta, Kenya’s richest man and the son of the country’s first president, was declared the winner a few days later. The result was challenged by his main opponent, Raila Odinga, who alleged that votes had been stolen through the hacking of online systems. On 1 September, the Supreme Court declared the presidential election result to be ‘invalid, null and void’ on the basis that there were ‘irregularities and illegalities’ in the transmission of ballot results by the Independent Electoral and Boundaries Commission (IEBC) and that the poll thus had not been held in accordance with the Constitution. The decision of the Supreme Court, led by Chief Justice David Maraga, has been praised domestically and around the world.

Comment

The Supreme Court decision has dealt a devastating blow to the IEBC, the entity charged with overseeing the conduct of the election. The ruling, with a full judgment to follow within 21 days, found that the IEBC ran the election with ‘irregularities and illegalities’ that contravened the Constitution and the Elections Act, 2011. The irregularities are largely to do with the transmission of the results from the polling stations rather than the counting of the votes themselves. The Court found that some forms lacked the required security features and, in some cases, the results were sent via text message. The findings have severely undermined the credibility of the IEBC, which has already come under scrutiny following the mysterious death of Christopher Msando, the IEBC IT manager who appeared to have been tortured when his body was discovered on 31 July. While Odinga’s petition to the court included an allegation that Msando was tortured to allow votes to be stolen, the Supreme Court did not address that matter in its determination.

In any event, the decision raises a number of questions ahead of the second election that is to be held on 17 October. The exact details of what went wrong in the first election are still unclear and, with the re-election to be held so soon, it is difficult to believe that the process will be any more valid. Similarly, international observers such as the Carter Centre, led by former United States Secretary of State, John Kerry, have lost credibility after declaring the elections to be free and fair. In contravening the conclusions of international observers, the Court’s decision demonstrates the growing independence and strength of local institutions, which is itself a welcome and hopeful trend.

While the general consensus is that this decision illustrates the growing maturity of Kenyan democracy and has cemented the 2010 Constitution, the Supreme Court judges may have exposed themselves to political attacks. Following the announcement, as many journalists were praising Maraga and his colleagues, Kenyatta launched into a tirade against the Court. Manipulating the class divide to sow distrust of the judiciary among his followers, he declared that ‘six people have decided they will go against the will of the people’, referring to the 54 per cent who voted for him. Although Kenyatta has accepted the ruling, he has made his disdain clear, calling the justices ‘crooks’ and vowing to ‘fix’ the Supreme Court “issue” if re-elected. Given that his Jubilee party won the majority of the seats in the Senate and in the National Assembly, a legislative attack on the judiciary is possible.

The Kenyan Supreme Court has handed down a landmark decision in which, for the first time anywhere in Africa, the election of a president has been annulled. Evidently, democracy in Kenya has evolved dramatically from the 24 years of “single-party democracy” under Daniel arap Moi from 1978 to 2002. The decision has again positioned Kenya as a leader in the region. More specifically, Kenya has served as a beacon of hope for countries such as Zimbabwe, where the opposition leader Morgan Tsvangirai has lauded the Kenyan achievements, citing the country as proof that democratic rule is achievable in Zimbabwe, which has been ruled by Robert Mugabe for 37 years. While the second round of voting will most likely deliver the same victor, the Supreme Court has demonstrated its independence and that higher standards of politics are now required in contemporary Kenya.

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