THE Kenyan Supreme Court's unexpected decision in the last week of August to nullify the election victory of incumbent President Uhuru Kenyatta in the general election held on August 8 is being hailed as a landmark judgment, unprecedented in the politics of the African continent. A six-member bench voted four to two in favour of cancelling the presidential election and ordering a new one within 60 days. The court said that the “recently concluded election was not conducted according to the Constitution” and was therefore “invalid, null and void”. It blamed the country’s Independent Electoral and Boundaries Commission (IEBC), as the Kenyan election commission is called, for not following the basic principles of transparency and the rule of law in conducting the election.
The Supreme Court, among other things, found fault with the procedure the IEBC used for the tallying of votes. The IEBC’s lawyers admitted in court that the “official website” that released the results was not in fact the “public portal” the public was initially led to believe it was. The IEBC also conceded that on many occasions it had bypassed the electronic system while tallying the votes. The international media and the majority of the international observers, including those from the African Union, had pronounced the elections generally fair and free. They relied on the results relayed by the “official portal” of the IEBC to come to this conclusion. The IEBC had argued in the Supreme Court that despite some of the glaring errors that were pointed out, the margin of Kenyatta’s victory was so big that the errors would not have altered the final outcome.
Missing forms According to the official results of the presidential elections in August, Kenyatta won 54 per cent of the votes polled, with Raila Odinga, his strongest challenger, trailing by more than nine percentage points. The IEBC declared Kenyatta the winner on August 11, but the official forms with the break-up of votes and the tally from all the constituencies was only given to the opposition parties by August 14. Some of the forms did not have the mandatory barcodes. “If some of the forms have barcodes, then shouldn’t all the forms have barcodes?” the Chief Justice asked the IEBC. More than 10,000 of the forms have been declared missing. Kenya had opted for electronic voting in order to pre-empt ballot stuffing and other forms of rigging. The Kenyan government had spent more that $500 million to make the electoral system foolproof. It will have to cough up a similar amount in order to conduct the election in a more credible way in the rerun which has been scheduled for October 17.
Wafula Chebukati, the IEBC Chairman, told the media after the court judgment that the basic integrity of the commission was not questioned. The major thrust of the court’s observations, he said, was on the faults committed in the transmission of the final results, not on its overall supervision of the election.
Even before the ballots were cast, Odinga was alleging that the election would be rigged. A key election official, who was in charge of supervising the electronic balloting, was found tortured and killed under mysterious circumstances just before the election. The election commission had admitted that there were attempts to hack the computerised polling system before the vote. After more than 30 people were killed in the violence immediately after the election results were announced, African and world leaders quietly urged Odinga to accept the results or take his allegations of electoral skulduggery to the judiciary. He heeded the advice of other opposition leaders and the international community to forsake violence and avoid a repeat of the events of 2007 and reluctantly took the matter to the highest court of the land. He had earlier threatened that the case would be decided “in the court of people’s opinion”. In the last election, too, he had gone to court alleging that it had been rigged. His case was thrown out even though he lost with a narrower margin in that election. Many Kenyans are of the opinion that there were more instances of electoral malpractices in that election than in the one held this year.
Odinga and his supporters in cities such as Nairobi and Mombasa were jubilant with the Supreme Court’s decision to nullify the election, especially since they were least expecting it. He said that the Supreme Court had “set an exceptional example for the whole of Africa”. He thanked it for “standing up for the truth”. Odinga had harsh words for the IEBC and said that his party would not contest the elections until the body was radically overhauled. “There are more fundamental decisions to be made in the days ahead, including who will conduct the next election. It is now clear that the entire IEBC is rotten,” he said. He has described Kenyatta’s presidency as “a computer-generated” one.
Kenyatta had no option but to accept the Supreme Court’s decision, though he cast aspersions on it. He said that “millions of Kenyans queued up and made their choice and six people have decided that they will go against the will of the people”. The President and his supporters were particularly critical of Chief Justice David Maraga, who was among the three judges who recommended the holding of a fresh election. Kenyatta said that though he did not agree with the decision he would abide by it. “We respect it. We don't agree with it,” he said. The Supreme Court has not charged Kenyatta with personal involvement in the electoral malpractices and had only charged the election commission of “committing irregularities and illegalities in the transmission of results”. But Kenyatta is an angry man. Speaking to his supporters a few days after the verdict, he described the Supreme Court judges as “crooks and vagabonds” and pledged to “fix the judiciary” after the next election. Most observers of the Kenyan political scene expect Kenyatta to win again in October.
Election history Kenya has had a chequered election history. The violence that erupted after the 2007 election was among the worst the country has witnessed. More than 1,300 people were killed and 600,000 were displaced. That election was blatantly rigged. Odinga, who many Kenyans felt was the rightful winner, was made the Prime Minister following a peace deal between the rival parties.
Mwai Kibaki retained the presidency despite the charges of rigging and fomenting violence that were raised against him. Kenyatta and the present Deputy President, William Ruto, were charged with instigating violence in 2007 and were facing trial at the International Criminal Court (ICC). But they escaped possible punishment after they were elected as President and Deputy President in the 2013 election. The ICC said that witnesses had turned hostile and the Kenyan government was not cooperating. The Kenyan government has been a close ally of the United States. A different yardstick is applied to indicted leaders in Africa and Asia who are close to the West. Ruto was an ally and running mate of Odinga in the 2007 election. Ruto, a leader of the Kalenjin ethnic group, deftly shifted loyalties, calculating that an alliance with Kenyatta would give him a much better chance of winning and a better chance of staying clear of the not-too-long arm of the ICC.
The present election is probably the last realistic chance for the 74-year-old Odinga to fulfil his ambition of becoming President. This is the third time he has contested only to be pipped at the post by a combination of circumstances.
The legendary Jaramogi Oginga Odinga, Raila Odinga’s father, and Jomo Kenyatta, Uhuru Kenyatta’s father, were the two pre-eminent figures of Kenya’s freedom struggle. After independence, the two leaders fell out as ethnic politics began to occupy centre stage in the country. Kenya after independence gravitated closer to the West. Oginga Odinga, popularly known as Double O, was a progressive who was close to the Soviet bloc and was sidelined and kept out of office even though he was the undisputed leader of the Luo, one of the five major ethnic groups in the country. The Kikuyus constitute the biggest ethnic group. The other three are the Kalenjin, the Luhya and the Kamba. The Kikuyu and the Kalenjin have been able to corner the spoils of power for a long time. These ethnic groups make up more than 62 per cent of Kenya’s population.
Raila Odinga is no leftist though he has been claiming his father’s legacy. There were hardly any ideological and political differences between the competing candidates in the 2017 election. His and his allies’ main argument was that it was now their turn to be at the helm of affairs and serve their constituencies, which they alleged have been grossly neglected by all the previous governments. The IEBC has stated that the names of only Kenyatta, representing the ruling Jubilee Coalition, and Odinga of the National Super Alliance will be on the ballot. The six other candidates who contested the presidency in August will no longer figure in the race.
The IEBC is expected to remove some of its senior officials who are viewed with suspicion by the opposition. Raila Odinga has recently upped the ante by stating that he will participate in the election only if the IEBC’s CEO, Ezra Chiloba, is sacked and prosecuted. Kenyans are waiting with their fingers crossed as the new election day approaches. Before the election in August, many Kenyans had left cities such as Nairobi for the relative safety of their villages, fearing a repeat of the bloodshed that followed previous elections.
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