Alert 75 – Kenya: Supreme Court nullifies 8 August results, orders new election

In an unexpected decision, Kenya’s Supreme Court on 1 September 2017 found that the 8 August national election failed to meet constitutional muster and accordingly nullified the results and ordered a new vote be held within 60 days. The Court found there was merit to the argument put forward by the opposition coalition, the National Super Alliance (NASA), that the Independent Election and Boundaries Commission (IEBC) had committed irregularities in tallying votes, specifically with regard to the electronic systems used to count the ballots and communicate the results. Importantly, the Supreme Court found no fault with the incumbent President Uhuru Kenyatta or his ruling Jubilee Coalition.

In response to the finding Kenyatta, who had been declared the winner of the election, initially called for calm and said he would respect the findings. However, the President and his deputy, William Ruto, have subsequently made veiled threats towards the judiciary and implied that Chief Justice David Maraga was influenced by external forces. Kenyatta has since been chastised by both the judiciary and civil society for these remarks and seems to intend to respect the ruling.

NASA leader Raila Odinga in turn called for IEBC’s top officials to be removed, claiming the ruling proves that they are fraudulent and cannot be trusted. He has also dismissed calls for a government of national unity between NASA and Jubilee, saying his rivals cannot be trusted. Odinga already felt that he was conned when he last agreed to such an arrangement in 2007.

On a practical level, there are fundamental concerns that the IEBC will not have the time or funds to organise another election by 30 October 2017. The government will most likely ensure the financing of the election but the IEBC’s organisational ability to source volunteers, workers, and resources to hold a free and fair election on short notice has been questioned. Further, reports of infighting among the IEBC’s top IEBC officials have seen its chairperson and CEO blaming one another for flaws in the 8 August election.

Meanwhile, both NASA and Jubilee returned to the campaign trail on 2 September, trading insults and mobilising supporters anew and re-energising supporters after a long and arduous election period will be challenging for both. This has raised concerns that they could look to whip up ethnic tension in a bid to drive the necessary enthusiasm to get voters to the polls. Already Kenya’s institutions have come under attack with Jubilee criticising the Supreme Court and NASA haranguing the IEBC.

The return to campaigning has highlighted concerns of ethnic violence and voter intimidation that frequently mark Kenyan elections with 28 people already killed in election related violence this year including IEBC officials. The likely major flash points of violence continue to be cosmopolitan areas like Nairobi, Mombasa, and Kisumu. Arguably, the threat of violence has increased now that both sides are claiming that victory was stolen from them in the first election.

In addition to the violence, Kenya’s economy will continue to suffer as people leave cosmopolitan urban areas for the safety of the ethnically homogeneous rural villages until after the election. People who had fled to rural villages had only just started to return when the ruling was announced.

Following the ruling, it is difficult to see how either side will accept the next elections results as the process itself appears to have been tainted. If Jubilee wins, NASA will surely claim it is due to the lack of radical leadership change at the IEBC; and if NASA wins Jubilee will also likely cry foul. Further, a presidential runoff election remains possible if neither candidate secures a 50% plus one majority which could see political tension and uncertainty extend well into November.

Although the 1 September Supreme Court ruling has been hailed as a victory for Kenyan democracy and an example to the African continent by NGOs and the African Union (AU), in real terms it has the potential to do irreparable damage as political tensions reach a post-2007 peak with a heightened risk of similar violence in the coming 60 days.