Rule of law

Kenya is heading for rerun elections

Setting an African precedent, Kenya’s Supreme Court has annulled the presidential elections held in August because of irregularities in the electoral process. Regional and international observers had considered the elections free and fair. Kenyan voters, however, face a confusing scenario.

The court decision has triggered mixed reactions in Kenya. The opposition hails the judicial system while the camp of President Uhuru Kenyatta is furious about the decision. All sides, however, are calling for a peaceful rerun of the elections. This is important in view of Kenya’s history of election-related violence.  

The Supreme Court ruled fourteen days after the National Super Alliance (NASA) of opposition leader Raila Odinga had filed a petition challenging the validity of the results. The judges found that irregularities and illegalities were committed by the Independent Election and Boundaries Commission (IEBC) in the transmission of the election results. Therefore, the integrity of the elections was violated, though there is no evidence of misconduct by Kenyatta’s Jubilee Party. Four judges voted to annul the election, while two judges wanted to uphold it.  

David Maraga, Kenya’s chief justice, said: “The greatness of a nation lies in its fidelity to its constitution and strict adherence to the rule of law and above all the fear of God ... .” The Supreme Court ordered new elections to be held by 31 October, and promised to publish its detailed judgment on 21. September. According to the judges, the decision had to be made fast to avoid a constitutional crisis, even though the evidence was too vast to be dealt with completely yet.  

As Kenyans prepare to go to the polls again, the scenario is confusing. The opposition is calling for the prosecution and resignation of the leadership of the IEBC. In turn, Wafula Chebukati, the IEBC chairman, wants any staff who may have messed up the election to be prosecuted. The commission’s legitimacy is obviously in doubt, but it has nonetheless declared the new election will be held on 17 October and that only Kenyatta and Odinga will run. Odinga, however, wants the election to take place later and has threatened to boycot the rerun unless there are "legal and constitutional guarantees". The IEBC, moreover, has asked the Supreme Court for more information on what went wrong last time, in order prevent the same flaws from happening. People wonder whether an improvised election can go well and whether legal action will follow once more.

Never before had an African court annulled a presidential election. Kenya’s judiciary has thus set a precedent. According to Odinga, “a new Kenya has been born,” as the judges have shown that they act independently. Odinga expressed the hope that they will put an end to impunity.

President Kenyatta, however, has expressed harsh criticism of the judges. He called them “crooks”, said that “the will of the people cannot be overturned by a few people” and spoke of a problem that “must be fixed”. Earlier, however, he had said that he accepts the judges’ decision even though he does not agree with it.

The judgment is also a vote of non-confidence in international election observers. Observer teams from the African Union (led by Thabo Mbeki), the EU (led by Marietje Schaake) and the USA (led by John Kerry) had declared the Kenyan elections to have been free and fair.

The Kenyan elections cost the equivalent of € 500 million, but have now been overturned by the Supreme Court. The rerun will add further strain on the national budget. Kenyans wonder whether anyone will be punished for wasting public resources through a bungled electoral process.

Grace Atuhaire is a freelance journalist currently working in Nairobi.


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