What the annulment of Kenya’s presidential election means for Africa

It is a lesson in independence for all judiciaries.

Mathew Otieno | Sep 5 2017 | comment

Kenya's Supreme Court [Reuters/Baz Ratner] via Aljazeera

On September 1, Kenya’s Supreme Court pronounced that Kenya’s presidential election, which was held on August 8, was null and void, and ordered a new election in 60 days. The 4 – 2 decision (the seventh member of the bench was down with an illness) came as a shock to everyone who was waiting for it.

After all, President Uhuru Kenyatta’s re-election, which had been announced by the electoral commission on August 13, had been endorsed by international observers from the EU, UK, USA and Africa. He had been congratulated by all international and regional leaders whose opinion mattered. The losers had been urged, by religious and business leaders, to accept the outcome and move on.

The petition filed by Raila Odinga, Kenya’s veteran opposition leader and major challenger of Mr Kenyatta, had been encouraged as a bothersome formality and tolerated as a pesky constitutional process. But everybody expected the Supreme Court to uphold Mr Kenyatta’s victory and launch him on his second, and last, term as the leader of East and Central Africa’s richest and most important country. In fact, Mr Kenyatta’s camp kept urging the opposition to accept the rulingbefore it was even made.

The implications of this stunning shake-up for Kenya’s historical narrative and identity is matter for a book or, at the very least, another article. But it suffices to say here that Mr Kenyatta is the son of Jomo Kenyatta, Kenya’s founding President. Offered the same position by outgoing British colonialists, Oginga Odinga, the father of Raila Odinga, proffered it to Jomo Kenyatta and settled for the position of Vice President.

After intrigue and a dramatic falling-out, the elder Odinga became the first visible sign of an opposition in Kenya, a position he held until his death in 1994 before he could reclaim the position he had given up. His ethnic Luo origins, and Mr Kenyatta’s Kikuyu roots, formed the basis for what has become a long-standing tribal rivalry between the two ethnic groups, defining the parameters of tribalism in the country.

Shortly after the verdict was read, the President said he “did not agree with the ruling but would accept it.” Barely hours later, in a public rally, he sent loosely veiled threats to the Supreme Court, calling the bench “Maraga na wakora wake,” which in Swahili means “Maraga and his crooks/thugs” (Justice David Maraga is the Chief Justice).

Mr Kenyatta and his supporters, especially his feared deputy William Ruto, have since hurled other epithets and threats at the judiciary, vowing to deal with it if they win the upcoming repeat election, which the electoral commission has scheduled for October 17. They have been roundly criticised by opposition politicians as well as civil and non-governmental organisations.

In the same post-verdict period, international observers, notable among them John Kerry of the US’s Carter Centre and Marietje Schaalke of the EU have found themselves in the awkward territory of having to retract or restate their positions amid catcalling from Kenyans on social media. They had put their stamp of approval on a flawed election and, in the process, lost the trust of many Kenyans. There are now calls to review the role of the whole “observer industry.” But the fact that it is now called an “industry” perhaps says more.

The New York Times, which had, in an editorial that went viral in Kenya, scolded Mr Odinga for not conceding defeat, branded him as a “perennial loser” and accused him of “fanning ethnic hatred,” has taken the trouble to retract its statements in another editorial. Leaders are now deleting their congratulatory messages to Mr Kenyatta from their social media profiles.

The Supreme Court’s verdict was unprecedented. After the 2013 elections, the same Supreme Court, constituted slightly differently, upheld the slight win of Mr Kenyatta which had been challenged by the same opponent, Mr Odinga. It was a decision that most commentators deemed flawed. But it did not shock anyone. There was little precedent for the judiciary standing in the way of the executive branch.

In its recent verdict however, Kenya’s Supreme Court threw all that out of the window. It has shown that, if a judiciary is aware of its constitutional power and mandate, and is unafraid to exercise them, then it can hold its own against the executive. Whether it was the right decision or not can be debated ad infinitum, but that is beside the point. In many African countries, Judiciaries are regarded as mere rubber stamps for the overreaches of the executive arm of the government.

The implications of the boldness of Kenya’s Supreme Court have reverberated across the continent and the world. Perhaps democracy in Africa is finally coming of age. Perhaps African institutions, for all their flaws, can actually do what they are supposed to do. It emboldens judiciaries in other parts of the continent.

The political temperature is going to heat up again in Kenya leading up to the repeat election on October 17. Many will fear that the mistakes that led to the discrediting of the August elections will show up again. But for many more, it is now clear that if elections are bungled, they can actually be nullified. And that, if it isn’t anything else, is democratic progress.

Mathew Otieno writes from Nairobi in Kenya.

September 5, 2017

“Good news from Africa” is the theme of our Harambee blog. This week Mathew Otieno reports from Kenya on what may prove to be a very positive development. The country’s Supreme Court has nullified the results of the presidential election held on August 8. Kenyans will have to return to the polls later this year.

Bear in mind that hundreds of people died in the wake of the last election, in 2007, in which President Uhuru Kenyatta won. It must have taken great courage for the judges to decide that the Kenyan electoral commission had “failed, neglected or refused to conduct the presidential election in a manner consistent with the dictates of the constitution”. They knew that the President and his supporters would be outraged.

Whatever the merits of the judges’ decision, their courage in defying the power of the executive is a victory for an independent judiciary. This is essential for a democratic nation which respects human rights. This really is good news from Africa.