Kenya’s Rescheduled Elections Are a Triumph of Constitutionalism—but How Much Has Really Changed?

Kenya’s Rescheduled Elections Are a Triumph of Constitutionalism—but How Much Has Really Changed?

Kenya’s Rescheduled Elections Are a Triumph of Constitutionalism—but How Much Has Really Changed?

The country is now a tinderbox, in which supporters of the rival factions believe they can lose only if the other side rigs the results.


Nairobi—The celebrations are over, and the cold reality is dawning that the historic Supreme Court nullification of President Uhuru Kenyatta’s August 8 election victory presented only a temporary respite from Kenya’s toxic ethnic politics.

The repeat elections ordered by the Supreme Court have been scheduled for October 17, but already, familiar battle lines have been drawn. Veteran opposition campaigner Raila Odinga’s National Super Alliance, or NASA, vows that it will not take part in polls overseen by the same Independent Electoral and Boundaries Commission (IEBC) indicted by the Supreme Court ruling.

President Kenyatta’s Jubilee Party, in turn, has regrouped after the initial shock of the decision to launch vicious attacks against both the Supreme Court and NASA, which it accuses of colluding to deliver the unfavorable ruling.

In the meantime, the IEBC, which is supposed to be organizing the fresh presidential election, is split down the middle. Chairman Wafula Chebukati attempted to sideline Chief Executive Ezra Chiloba and other key secretariat directors by appointing a project team to manage the rescheduled polling, but Chebukati was rebuffed by his fellow commissioners. After mediation by church leaders, he relented and said Chiloba would head the team.

With the commission distracted by infighting that is taking on hues of the familiar Kenyatta-Odinga political feud, there are real concerns that it might not manage the very tight timelines for the repeat election, which by law must be held within 60 days of the Supreme Court’s September 1 verdict.

Issues also arise around the credibility of an electoral management body found by the courts to have bungled the August polling and, worse, one in which feuding commissioners and top managers are seen to be allied to either of the rival political groupings. While the Supreme Court decision caught global attention, resumption of the usual politics serves as a reminder that nothing has really changed.

The split decision by Chief Justice David Maraga’s Supreme Court bench—quite apart from being a vindication of Odinga’s complaint that the voting had been rigged—was celebrated across the world as a triumph for constitutionalism and the rule of law. It was seen as not only a landmark decision but an example for the rest of the African continent, where incumbents all too often cling to power through fixed polls and there is no legal recourse in systems where the courts are usually extensions of the political leadership.

The decision was also in some ways an indictment of the large contingent of international election observers who in the immediate aftermath of the August vote gave the poll a “free and fair” mark, only to be left with egg on their faces.

At the local level, the judicial process was also seen to have provided a critical safety valve in an environment where the threat of ethnic-political violence casts a dark shadow over every election. Indeed, Kenya seemed to heading toward another round of violence when Odinga rejected the August 11 declaration of Kenyatta’s election victory. The decision to contest the election outcome in court rather than on the streets calmed the waters. From August 18, calm prevailed, as all eyes turned to the Supreme Court, where Odinga’s lawyers presented their case for annulment, while lawyers representing Kenyatta and the IEBC argued for the result to be upheld.

The verdict, delivered by Justice Maraga in a 4-2 majority, was a major shocker all round.

Although the full ruling giving the reasons for the annulment has yet to be delivered, Odinga took the decision as proof of his claim to have been the actual winner of the poll. Kenyatta’s backers, meanwhile, have been on the offensive, rubbishing a court decision they claim was not based on the actual counted votes but only on technical issues around the vote-result transmission system, which they argue did not affect the actual outcome. They insist that the actual vote count was not challenged and that Kenyatta’s 1.4 million-vote margin over Odinga remains intact.

But without an actual vote recount, which neither Odinga’s nor Kenyatta’s lawyers asked for in court, it might be impossible to tell where the truth lies. In that scenario, it would even be dicey to use the annulled election results or the Supreme Court decision as a guide for projecting the likely outcome of the repeat poll.

The only certainty is that the rescheduled election will be a hard-fought one. Kenya is now a tinderbox, in which supporters of each of the rival political formations and ethnic alliances believe passionately that they have the majority and thus can lose only if the other side rigs the results. Kenyatta and Odinga are both doing their best to mobilize their respective supporters by playing up the “threat” of being cheated out of victory.

At campaign rallies across the country, on vernacular radio stations, on social-media platforms, and even at funerals and church services, ethnic mobilization is reaching a fever pitch. Violent rhetoric and hate speech were already a feature of the first round of electioneering, but from both sides now, the stakes have been raised, with the contest assuming even more urgent and dangerous tones.

Despite the landmark Supreme Court decision, Kenya has yet to prove that it can deliver a free, fair, credible, and peaceful election.

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