As Kenyans head back for a repeat presidential vote today October 26, a fatigued nation is feeling short-changed by a pro-reform consortium that has persistently pushed for a supposedly perfect electoral system over the years.
Pitting incumbent President Uhuru Kenyatta and six other candidates, including the opposition’s perennial runner, Mr. Raila Odinga, the upcoming rerun was ordered by the country’s Supreme Court early last September, to cure what it described as failure by the Independent Electoral and Boundaries Commission (IEBC) to conduct the general election of August 8 “in strict conformity” with the constitution. In his petition challenging Mr. Kenyatta’s re-election, Mr. Odinga cited a series of “irregularities and illegalities” as evidence that the entire electoral process was flawed.
The court ruling, which was internationally hailed as confirmation that democracy was finally taking root on the continent, turned out to be unprecedented in more ways than one. It marked the first time in peacetime Africa that a sitting president had his electoral victory annulled. And much as it snatched his moment of joy, the pronouncement provided Mr. Kenyatta with a unique opportunity to demonstrate his avowed commitment to the rule of law. In a continent where such a court decision would, in the past, have either been totally ignored or led to the immediate jailing of the judges, Mr. Kenyatta’s decision to respect the ruling and participate in the rerun undoubtedly set a new standard for his peers.
Yet for all the praise it drew globally, including from Mrs. Hilary Clinton, the Democratic Party’s candidate against President Donald Trump, the Kenyan verdict has since drawn the ire of voters for precipitating what many equate to unparalleled constitutional anarchy.
To understand the anger, especially among Mr. Kenyatta’s supporters, was the question whether Kenyans had freely exercised their sovereign will through the election of August 8. The law, as a minimum, requires that such an election be “simple, accurate, verifiable, secure, accountable and transparent.” Which begs the question: was this thresh-hold met on polling day?
On Election Day, this writer and over 16 million other Kenyans (out of a total of around 19 million registered to vote) trooped to their nearest polling station (essentially a stream within a polling centre) to cast ballots for a local representative, three members of parliament, governor and president. Inside the polling station, each voter presented personal identification documents to an election official. The voter’s identify was then verified through a bio-metric kit, after which they were handed the six ballots. Stepping into a private booth within the polling station, the voter proceeded to mark each ballot against the candidate of their choice, then carefully folded and deposited their vote into a clearly labelled, colour coded, transparent box.
In their detailed reports issued shortly after the IEBC declared Mr. Kenyatta President-elect, a host of local and international observer missions, including African, Commonwealth, European and American missions, affirmed the presidential result, saying it reflected the will of Kenyan voters. Former US Secretary of State John Kerry, who co-led the Carter Centre’s election monitoring team, praised the IEBC’s performance under extremely difficult circumstances. Indeed, the unanimous position adopted by the observer missions on the voting process detailed above seemed to have found favour with the Supreme Court, which did not dispute the presidential result, announced by the IEBC; nor did Mr. Odinga’s petition. The result gave President Kenyatta 8.2 million votes against Mr. Odinga’s 6.7 million votes.
Given the foregoing, the question that continues to nag constitutional minds, especially those unfamiliar with Kenya’s hugely complex electoral laws, is: exactly why did the Supreme Court overturn President Kenyatta’s re-election and what does it mean for future elections, including the rerun? The court gave two grounds touching on the transmission and handling of results after conclusion of the voting process. In the first instance, the judges ruled that around 10 percent of the 40,800 polling stations did not electronically transmit their results through the IEBC’s server as required by law. The court further argued that the IEBC chairman, who, by law, is the returning officer for the presidential race, ought to have personally verified results from all the 40,000 plus polling stations before declaring President Kenyatta winner.
The import of this was that although the returning officer for the presidential election is the head of the IEBC, the court effectively barred him from relying on his own officers at the constituency level. Yet these were the same officials who declared results for all the non-presidential races, which the court declined to annul. Second, in response to an allegation by Mr. Odinga that the IEBC server had been hacked, the court declared that although no evidence had been presented, it felt compelled to agree with the petitioner simply because a technical team assigned to investigate the claim had not been given what the court said was adequate access to the servers. Curiously, the court had itself instructed that the technical team be given read-only access to safeguard the electoral data as well as file its report on time. For its part IEBC acknowledged that due to poor 3G or 4G connectivity, there had been some technical challenges in the transmission of the results from far-flung parts of the country, but maintained this did not materially alter the total vote cast by Kenyans.
That the Supreme Court did not agree with the IEBC and President Kenyatta’s lawyers on that last point has since opened a widening chasm among local and international experts in jurisprudence, with many arguing the matter will remain unsettled long into the future. The upshot of the ruling, say senior lawyers in Nairobi, is that it conflated a simple democratic principle of what constitutes a valid vote with a highly technical and largely legalistic subject. In short, the court put a much higher premium on the process associated with the technical transmission of results against the quantity of votes, casts for each candidate.
To many observers, rather than nudge forward a country that was beginning to rebound from the tragic aftermath of the disputed election of 2007, when nearly 1000 people died, the Supreme Court ruling has driven Kenya to uncharted waters. Instead of ordering a recount of the presidential vote, as was widely expected, the court maintained it would render the same ruling if the rerun encountered the same technological challenges. The opposition and motley of non-governmental organisations, meanwhile, have since ratcheted calls for yet more electoral reforms, insisting that the rerun should be put off until a new ballot printing company, brand new voter identification and results transmission technologies are procured.
Given that these expensive gadgets are contracted to international companies exerting pressure from local non-governmental organisations, most Kenyans, dazed by the over US$10 million sunk into the electoral process this year alone, are wondering whether their quest for a stable, thriving democracy, has not been captured by vested commercial interests that are now threatening one of Africa’s more prosperous economies.
The anger among ordinary Kenyans, who survive on about $2 a day, is accentuated by the fact that their country, having invested heavily in the battle against the al-shabaab terror group, is just emerging from a severe year-long drought that has seen food prices skyrocket. The extended electioneering period has also hit businesses really hard. Most manufacturers have cut production to sub-optimal levels, in turn depressing the retail sector. The stock market, which crashed after nullification of the presidential election, losing over $5 million just minutes after the shock court decision, has stagnated. The Kenya Association of Manufacturers, the powerful private sector lobby, has warned of massive layoffs if the economy is not back on track quickly.
Kibiriti, a former Knight Bagehot Fellow at New York’s Columbia University, runs a Nairobi-based consulting company. He is a regular commentator on African affairs.