Kenya’s Chief Justice David Maraga before nullifying the August presidential election and ordering a re-run, 20 September 2017 (EPA-EFE/Dai Kurokawa)
By Dennis Kabutha
Hardly had Kenyans washed the ink off their fingers following their presidential election in August than the Supreme Court nullified the results of the vote and ordered a fresh ballot this month — a momentous ruling for the East African nation and the continent.
If we have learned anything in the past two years, it’s that no political outcome should be surprising, from Brexit in the United Kingdom to a Donald Trump presidency in the United States.
But the court order to hold another election in Kenya surprised even Raila Odinga, the opposition candidate who had called for it in the first place.
The shock ruling has been hailed as a victory for an independent judiciary in Kenya. But it is unlikely to mend ethnic and economic divisions in the East African nation.
“Null and void”
The past decade has been monumental for Kenya, beginning with a political impasse and bloody post-election violence in 2007. The country adopted a new Constitution in 2010 to avoid more of the same in the future.
The new Constitution established the Supreme Court and the Independent Electoral and Boundaries Commission (IEBC) — achievements to be sure, but not enough to snuff out longstanding tension and mistrust among Kenya’s many ethnic groups.
The August presidential election, like the 2013 election, was a duel between two longstanding foes — the sitting president, Uhuru Kenyatta, and opposition leader Odinga.
In Kenya, voters generally cast ballots based on their tribe. There are 44 tribes, regionally distributed, and candidates can make a rough estimate of the number of votes they will receive based on the size of their tribes.
Predictably, Kenyatta and Odinga resorted to the age-old tactic of appealing to their ethnic groups. Kenyatta hails from the Kikuyu tribe, the largest ethnic group, and so had a head start.
As soon as the voting started on August 8, Odinga’s camp cried foul, claiming that irregularities had affected the entire election process. But when the polls closed, the IEBC declared Kenyatta the winner, with 54 percent of the vote.
Odinga’s supporters then put their country’s new institutions to use. Members of civil society and Odinga’s lawyers brought lawsuits to the IEBC. The recently installed Supreme Court Justice David Maraga announced that the election had not been conducted in accordance with the Constitution and declared the results “null and void.”
The ruling is a giant stride for Kenya’s democracy.
Following the court ruling, Kenyatta adopted a combative tone, calling the bench “crooks.” Members of Kenyatta’s party have launched petitions seeking the removal of certain judges. Pro-Kenyatta protests outside of the Supreme Court have turned violent.
But while Kenyatta has criticized the ruling, he has stopped short of rejecting it and said he will “revisit” the issue only after the re-run.
So the ruling is a giant stride for Kenya’s democracy. As Maraga put it when issuing the court ruling: “…[T]he greatness of a nation lies in its fidelity to the Constitution and the strict adherence to the rule of law…”
A vicious campaign is anticipated ahead of the October 26 vote. Already, the ruling party has diverged from its diplomatic cocoon and adopted a pugnacious tone.
The electoral re-run could well keep Kenyatta as president. In only three other cases worldwide have repeat polls yielded a different result.
In the event, little points to a narrowing of Kenya’s gaping ethnic divisions — or to a replenishing of the country’s coffers. The August election cost $1 billion, about $25 per voter, making it one of the world’s most expensive votes. This amid rising inflation and lackluster economic growth.
How Kenya, a regional power, emerges from this election cycle will have consequences not just within her borders but throughout all of Africa as nation states on the continent seek to strengthen democratic institutions.
Dennis Kabutha is a graduate of Communication and Linguistics, and currently a master’s student at the University of Nairobi. He is interested in international affairs and development. He has previously worked with French Institute for Research in Africa and UN-Habitat as an intern.