The Supreme Court’s decision to nullify the result of the 8 August presidential elections, and hence the re-election of President Uhuru Kenyatta, has sent Kenya into a state of electoral limbo. What happens in the next three weeks will not only define President Kenyatta’s tenure, but will shape the process of democratic consolidation more broadly.
Following a tightly fought campaign, early results appeared to show that Kenyatta had secured a comfortable first round victory with 54% of the vote. However, the opposition National Super Alliance (NASA) immediately rejected the results, claiming that the election had been “hacked” and that in reality their candidate, Raila Odinga, had been victorious.
Although the opposition’s complaints inspired some protests in its heartlands – leading to a violent crack down by the security forces that culminated in over 50 deaths – they failed to force a re-think on the part of either the Independent Electoral and Boundaries Commission (IEBC) or international election observers, who largely endorsed the process. As a result, it was unsurprising when Odinga announced that he intended to appeal against the election results at the Supreme Court.
Evidence in favour of the opposition’s allegations included the fact that many of the results forms from the polling station level that are supposed to feature the signatures of party agents and hence validate the process appeared to go missing, the pre-election murder of the respected IEBC ICT official Chris Msando – who NASA claims was killed because he was determined to run a high quality election – and the fact that the Commission unnecessarily declared Kenyatta the victor before it had effectively responded to opposition complaints. However, in the absence of an obvious “smoking gun” proving the exact extent of rigging, most observers expected the Supreme Court to rule in favour of the ruling party, as it did in 2013.
Indeed, up to this point the elections confirmed to an established pattern: a heated campaign, a questionable process, a disputed result, a ruling party claiming victory, and an opposition protesting rigging. But that all changed when the Supreme Court took the unprecedented step of upholding the opposition’s complaint and ordering the IEBC to re-run the contest, stating that the election had not been conducted in a legal manner. This verdict made history as the first time that a court of law had overturned the election of a sitting president in Africa, and was immediately seized upon by opposition leaders and supporters as evidence that Odinga was the true winner of the poll.
However, the implications of the Supreme Court’s verdict for Kenyan politics are unclear for two reasons. On the one hand, the Court has yet to deliver the explanatory text that will accompany its verdict and is essential to understanding why it ordered a “fresh” election and what changes to the electoral system will be required. On the other, although the Independent and Electoral Boundaries Commission (IEBC) quickly announced that it would organise the re-run on October 17, it is unclear whether the Commission has the credibility and capacity to deliver a good quality election within this time frame. Despite being short on detail, the Supreme Court’s decision suggests that significant reforms will be required – although it is not yet clear what these will be. Already, the opposition has rejected the new election date, complaining that it was arrived at without consultation.
With the fate of the electoral commission in doubt, it is difficult to see a way in which the 2017 electoral process can be brought to a consensual conclusion. While the IEBC is poorly placed to deliver a free and fair election, it is also unfeasible to create a new election management body in the time available – 60 days – before the next election needs to be held. As a result, a succesful resolution to the presidential election is unlikely to emerge from the judiciary or electoral commission alone. Instead, it will probably require a political compromise based on a period of negotiation between the main candidates. The danger for Kenya right now is that the growing degree of political polarization in the country militates against such a process.
The nullification of the result also generated other ambiguities. Having previously demanded that his rival respect the rule of law, President Kenyatta’s initial response to the result was consistent with his rhetoric. However, just hours after stating that he would abide by the decision, the president attacked the Supreme Court in off the cuff remarks, branding the judges “crooks” and pledging to “fix” the Court if re-elected.
Kenyatta’s ill-advised comments undermined his claim to be the candidate best placed to maintain law and order and preserve political stability, and hence called into question one of the government’s main criticisms of the opposition – namely that it is a force of “disorder”. They also generated concerns that the ruling party intends to sway the Supreme Court’s judgement by intimidating judges and threatening the institution with post-election reform if it does not bend to the will of the executive.
We have yet to see how the Supreme Court will respond to this provocation. In its initial decision, 4 judges voted to nullify the election while 2 expressed a dissenting opinion. The future trajectory of Kenyan politics will be profoundly shaped by the reasons that the four judges give for their verdict, the implications that this has for the IEBC, and the willingness of rival political leaders to come to an agreement on how to respond to the Court’s decision and move the political debate forward.