Globally, it is a rarity for courts to nullify presidential election results; in Africa this was totally outlandish – that is until the Supreme Court in Kenya on September 1, 2017 annulled the re-election of Uhuru Kenyatta.
The shock that followed the Supreme Court verdict reverberated across Africa and is unlikely to die anytime soon, especially in Kenya where successive general elections have been dogged by concern of vote rigging and political instability, as highlighted by the violence that followed a disputed 2007 election when more than 1,200 people were killed.
“The Supreme Court decision for a repeat of the presidential election means Kenyans have an opportunity to truly elect a leader through the ballot as per the Constitution and without manipulation of votes,” says John Mwandu, a political analyst in Nairobi.
The Independent Electoral and Boundaries Commission (IEBC) has tentatively scheduled the rematch between President Uhuru Kenyatta and Raila Odinga for October 17, 2017.
But as campaigns for the new election got underway, the fear of violence that has characterized recent Kenyan elections has only intensified as both sides rallied their supporters.
“While one could understand the initial euphoria and outrage that greeted the ruling, sobriety should have taken over as the dust settled and the reality of the ruling sunk in. However, each day has brought a new barrage of threats, insults, half-truths and ethnic slurs that do not augur well for a peaceful outcome in six weeks,” Gabriel Dolan, a Catholic priest based in Kenya’s second-largest city of Mombasa said in a commentary.
“In fact, the country appears to be more polarized now than before last month’s general election,” he added.
Kenyatta’s campaigns for the new elections have dwelled on bashing the Supreme Court for allegedly going against the will of the majority by nullifying the August 18, 2017 election results in which he was declared the winner by a margin of 1.4 million votes against rival Odinga.
Just hours after the Supreme Court handed its decision, Kenyatta called the Chief Justice David Maraga, and the three other judges who supported the verdict, crooks. His successive campaigns have since taken on a similar pose of hard-stance politics and personal attacks both against the Judiciary and Odinga. Kenyatta has repeatedly called his rival a witch doctor, a perennial loser and one full of riddles.
Odinga has too adopted a similar fashion of campaigns and regularly made personal attacks against Kenyatta. The veteran opposition leader, for instance, accused the president of making a televized national address while drunk. He also called Kenyatta a thief who should be languishing in jail for stealing elections.
“It is unfortunate that the campaign messages have turned personal and animosity is getting to a fever pitch among the supporters of both candidates. It is no longer about policies but hate speech and insults which is dangerous as the country goes back to elections. There may be violence at the end of it all,” says Mwandu.
Hate speech from supporters of Kenyatta and Odinga have spread to social media, where some of them openly insulted and threatened each other.
Analysts say the Supreme Court verdict offers an opportunity to streamline Kenya’s electoral system that has been synonymous with systemic cheating.
“What the ruling did was put temporary brakes on the rollercoaster of impunity that has characterized almost every election in Kenya,” wrote Rasna Warah in a column in Kenya’s largest newspaper, Daily Nation.
“The ruling may not end impunity in Kenya’s electoral processes but it will have a far-reaching psychological impact on the citizens, who have been led to believe that peace is synonymous with justice,” she added.
In 2013, Odinga filed a case in the Supreme Court against Kenyatta’s election but it was thrown out on technicalities – leaving many suspicious over the conduct of the IEBC. Dissatisfied with the court decision, the opposition held a series of demonstrations that forced the disbandment of the commission ahead of this year’s elections.
But, with the radical court action, this time there is hope of laying bare the activities of the IEBC and restore legitimacy to Kenya’s elections.
“If there have been crooks manipulating voting outcomes in Kenya then things may be different going forward because the Supreme Court has proved impunity and blatant disregard of the law is punishable,” says Mweni Matheka, a governance researcher.
Other sovereign institutions, including the Ethics and Anti-Corruption Commission (EACC), the Office of the Auditor-General and the IEBC itself, may want to borrow a leaf from the Supreme Court and assert their independence.
All these institutions have been subject to political pressures, especially when their work went against the whims of the government.
Just after the August 8 polls, Leader of Government Business in Parliament, Aden Duale, declared that the ruling coalition would use its majority in Parliament to oust Auditor-General Edward Ouko whose office has had run-ins with the executive over explosive audit reports that showed theft and misuse of public funds.
The IEBC has not been spared the heat from both the executive and the opposition, especially after the bungled polls. Both sides have demanded to have a say in the composition of the IEBC team that will manage the repeat polls.
But in separate letters to the ruling Jubilee coalition Secretary-General Raphael Tuju and the opposition National Super Alliance Co-Principal Musalia Mudavadi, IEBC Chairman Wafula Chebukati on September 6 said the commission reserved the right to make changes without being directed by any of the political groups.
“Please note that the commission is an independent constitutional body, which as per Article 249 of the Constitution shall not be subject to direction or control by any person or authority,” Chebukati said in his letter to Tuju.
“It is therefore unacceptable for you to provide a list of staff that you direct us not to consider for the project team.”
The business community looks forward to conclusion of the elections to restore normalcy in the economy. The Kenya National Chamber of Commerce and Industry (KNCCI) estimates that the country’s economy has lost Sh21.3 billion ($210 million) since the Supreme Court ruling, as investors adopted a wait-and-see attitude. – Written by Allan Akombo