The leader of Kenya’s opposition coalition, Raila Odinga, has withdrawn from the repeat presidential election ordered by the country’s Supreme Court. Only two candidates were scheduled to compete in the upcoming poll, the other being the incumbent president, Uhuru Kenyatta.
A day after Odinga’s withdrawal, the Kenyan High Court ruled in favour of including another presidential candidate in the ballot, meaning that the election is now likely to go ahead. The new candidate, Ekuru Aukot, was an interested party in the Supreme Court case that invalidated the August 8th election.
Odinga’s pullout came in protest at the perceived inability of the Independent Electoral and Boundaries Commission (IEBC) to carry out a free and fair election.
In the recent petition to the Supreme Court, his National Super Alliance (NASA) accused the electoral commission of having failed in its duties to conduct an election, and demonstrated clear evidence of irregularities such as missing and forged electoral forms.
The Supreme Court found in favour of the opposition coalition, and so fresh elections were scheduled within 60 days. While there is consistency to Odinga’s distrust of the electoral commission, his position holds no legal consistency. The opposition made a petition to the Supreme Court and should therefore abide by its ruling. The court found that the electoral commission failed to conduct the election appropriately, but that there were no grounds for saying Kenyatta’s coalition, the Jubilee Alliance, had been the ones to rig it.
Odinga’s opposition coalition petitioned the courts and got the result they wanted. They should therefore have stood by the ruling and continued to follow constitutional channels. By withdrawing Odinga is terminating the country’s democratic processes. If the need for IEBC reform was enough reason to delay the election further, a case could have been brought to the Supreme Court on this basis.
The IEBC is a commission created by the Constitution, meaning its duty to conduct free and fair elections is a democratic fundamental. As such, political opposition to its operations has a clear legal remedy. Instead, Odinga’s abandonment of the process has handed legal credibility to his rivals.
Kenya is in uncharted territory. The group that sought free and fair elections through lawful means – the opposition coalition – has now abandoned trust in the constitutional commission set up to bring about the poll.
In making the decision Odinga has also signed a death sentence on his political career stretching back 40 years.
A history of hard fought battles
Odinga has had a lot of practice over very many years in navigating the difficult path between acting according to the rules of the system and opposing manipulation of those rules.
In 2002 he joined a broader inter-ethnic coalition to force leadership away from the Kenya African National Union (KANU). In power since independence in 1963, KANU had consistently thwarted the emergence of free and fair elections in Kenya in the 1990s under President Daniel arap Moi.
But those who initially spearheaded the inter-ethnic alliance also seemed to abuse the system to their advantage in the 2007 elections. Odinga led popular protests against the swearing-in of President Mwai Kibaki in complaint of this. The standoff plunged the country into one of its worst periods of political violence, with over 1,000 dead and hundreds of thousands internally displaced.
In 2013 Odinga took the disputed election results to the courts. But the Supreme Court allowed Kenyatta’s election to stand.
Many therefore felt that Odinga had finally got the democracy he’d fought for when the Supreme Court invalidated the 2017 results and ordered fresh elections. But that conclusion appears to have been premature. Odinga’s exit from the democratic process means opposition supporters’ faith in the system is at the point of collapse.
Odinga has been consistent in his criticisms of the electoral commission. And he has acted in a principled way. He should be praised for both.
Indeed, the failure of the electoral commission dates back as far as the constitutional referendum in 2010. A British court found that electoral commissioners accepted bribes from a UK firm to win the contract for printing ballot papers. In the 2017 elections, the accusation was that the local tallies did not match the central tallies being received electronically in Nairobi. The physical forms that would have reconciled the differences were then said to have been lost.
Despite the catastrophic failure to conduct this year’s election appropriately, the electoral commission chairperson refused to stand down, reducing public credibility in the institution to nil.
Complete new election?
The NASA coalition has tried to substantiate its position. Technically-speaking, they say, their withdrawal means no election can take place, and so a complete new election should be organised. So rather than Kenyatta being handed victory on a plate, a longer time for fresh elections would be given, with all allowed to compete as if it were a very first round. That would provide a breather of at least 90 days, with additional time for parties to nominate new leaders.
But such a legal argument is fanciful. It is based on a misreading of article 138 (8) (b) of Kenya’s Constitution which says that a complete new election must be organised if one of the candidates dies during the campaign period. The NASA coalition are arguing that their withdrawal from the elections is an abandonment that is forced by the failure of the electoral commission, and therefore tantamount to the death of a leader during the campaign period.
If they believe this is a solid legal argument, they can again petition the courts to invalidate the preparations for the fresh elections. But the legal argument is weak, and I doubt they will try this route.
The twist that NASA did not expect was the High Court ruling that a minor candidate is allowed to take the place of Odinga. That will mean an election that gives greater validity to Kenyatta’s inevitable victory – an enormous blow to Odinga’s strategy.
The High Court decision to include Ekuru Aukot is based on the fact that he was part of the original case that disputed the 2017 election results. But the court has made a grave error of legal judgment: Aukot was an ‘interested party’ to that case, not one of the ‘petitioners’. This is, in legal terms, a big difference. If he was a successful petitioner in the Supreme Court case, and therefore a valid candidate now, the fresh elections should have involved him from the start and been contested by three candidates.
One cannot simply add candidates as one goes to make the election look competitive.
In any case, the inclusion of Aukot will be of no consequence to the result. In the disputed 8 August polls he received a mere 0.18% of the vote, making him the 5th placed candidate. That compares against a supposed 54.17% for Kenyatta.
The electoral commission will, however turbulently, take forward the court judgments and hold an election between Kenyatta and Aukot. The polls will certainly mean Kenyatta is declared President of Kenya for his second term in a row.
This is the fault of Odinga who has taken the decision to exit lawful processes prematurely. The road to competitive free and fair elections in Kenya extends ever longer into the horizon.
After a Supreme Court ruling that invalidated Kenya’s August 8 presidential election, the country now finds itself in a moral predicament between political stability and electoral credibility.
On one hand, the ruling that ordered a fresh presidential election was a win for the democratic process the world over. The court found that Kenya’s Independent Electoral and Boundaries Commission was in violation of constitutional procedure. It also found that the commission had violated election law and in so doing impugned the credibility of the election.
On the other hand, the court’s decision has ushered the country into a period of political instability. Where it would have closed the chapter on the 2017 election cycle, it is now gearing up for a repeat poll slated for October 26.
Kenyans now find themselves in a tight spot made even more uncomfortable by demands being made by Raila Odinga and his National Super Alliance. The opposition is insisting that certain conditions, including reconstituting the election commission and reprinting key election documents, must be met before the October 26 election can be held.
The opposition’s hard stance could result in a delayed election. This could also happen if OT-Morpho, the French biometrics firm which supplied the electoral commission with its electronic voting system fails to have a new system ready in time. It’s indicated that it won’t. If indeed the key issue with the last election was that the voting system was not “simple and verifiable” as demanded by law, then any delays could be interpreted as being in the interests of a free, fair, credible and transparent election.
But for those who argue that no electoral process can be perfect, and that the August 8th poll was merely dogged by minor and inadvertent errors, then it begs the question: what is more important, electoral credibility or political stability?
The Supreme Court prioritised electoral credibility by invalidating the presidential election result on grounds that the election commission had committed illegalities and irregularities.
In doing so, it broke ranks with foreign election observer missions which had concluded that the presidential election was credible. By and large the Supreme Court ruling was a win for Kenyans and the rule of law. The court took the opportunity to audit the electoral process for transparency and to define the parameters of a credible election.
But its ruling raised questions of its own. For instance, the court ruled that the electoral commission didn’t strictly adhere to election procedure as set out in law. It also held that there had been tampering with the commission’s electronic voter management system. But it mandated the same commission to carry out a fresh election within 60 days.
Because the court gave no direction on the reconstitution of the commission, the petitioner Odinga and the respondent President Uhuru Kenyatta are now at an impasse over who should remain at the commission.
Those who disagree with the Supreme Court ruling see the court’s decision as a subversion of the will of the Kenyan people. For them, the ruling was a destabilising force which didnt’ reflect the people’s decision.
Giving credence to this argument is the fact that Kenya is viewed as the economic hub of East Africa. If the country does not return to normalcy as quickly as possible there will be a ripple effects, including economic, across the region.
On top of this, Kenya finds itself in a precarious situation because the executive is at odds with the judiciary. Kenyatta’s Jubilee Party has the majority in both houses of Parliament. It is therefore within its capacity to limit the independence of the judiciary should it continue to feel aggrieved by the Supreme Court decision. This could happen through a parliamentary referendum as per Article 256 of the Constitution and would involve members of parliament deciding to amend the constitution without a popular vote.
But by far the most pressing threat to Kenya’s continued political stability is the possibility that the Supreme Court may have created a situation in which Kenya could remain in election mode ad infinitum. Nothing stops a new petition from being filed should one of the candidates contest the next poll results.
If we look at Kenya’s neighbour Rwanda we see an example of a head of state that’s arguably prioritised a semblance of political stability over election credibility. Paul Kagame was recently reelected for the third time. Some argue that his rule has benefited Rwandans because the country has shown better socio-economic outcomes than most African countries.
But there tensions simmer and in the absence of electoral credibility, Rwanda’s political stability may be skin deep.
Rethinking Kenya’s election system
The Kenya case raises questions about elections in Africa and whether they are a force for political stability or instability. I would posit that Kenya has made great strides to improve electoral credibility since its catastrophic 2007 election.
In conclusion, election credibility and political stability aren’t mutually exclusive.
There should be a positive correlation between democracy and the improved well being of a state and its people. But in a country like Kenya with 40-plus tribes, the more populous tribes will always take advantage of their voting might, while the less populous ones struggle to compete. The system just does not work in their favour. It would seem therefore that they are locked out – not by choice but by circumstance.
So, does a majoritarian, “winner-takes-all” system suit an ethnically diverse society like Kenya’s?
Perhaps, not. I’m persuaded that there needs to be a re-imagination of electoral democratic practices in Africa. Kenya should take recent events as an opportunity to clean up its institutions and electoral system. If it doesn’t, future polls will continue to offer up a point of diversion between electoral credibility and a tenuous political stability.
Kenya faces an extended period of political and economic uncertainty after the Supreme Court tossed out the results of last month’s presidential election in a stunning decision that’s unprecedented in Africa.
The judges ordered a new vote to be held within 60 days, opening an intense campaign at risk of being marred by violence. The news sparked celebrations in the capital, Nairobi, and in Kisumu, stronghold of opposition presidential candidate Raila Odinga, who said the ruling marked “a historic day” for the people of Kenya. President Uhuru Kenyatta, winner of the annulled vote, said he disagreed with the decision but would respect it.
With its decision that the electoral commission failed to conduct a fair vote, the six-judge court demonstrated its enduring independence from the government of the day. It came at a time when demands for political change are spreading across Africa. Opposition parties won power in the past five years in Nigeria, the continent’s most populous nation, Ghana, Gambia and Senegal. The ruling also clouds the outlook for the country’s slowing economy.
“The historic Supreme Court ruling pours uncertainty on the Kenyan economy,” said Emma Gordon, an analyst at Bath, England-based Verisk Maplecroft. “Investors will be concerned about the financial implications and the high risk of violence. With the possibility of the new election going to a second round and the result being contested again, political uncertainty could easily last the rest of the year.”
The ruling Chief Justice David Maraga read out Friday to a packed Nairobi courtroom was a damning rebuke to the electoral commission, which repeatedly denied opposition claims that hackers rigged the vote results on its computer systems. The decision helps entrench the rule of law in Kenya, one of the key pillars of the country’s long-term development plan, said Jibran Qureishi, East Africa economist at Stanbic Holdings Ltd.
“This is an extraordinary ruling,” Qureishi said in a research note. “It affirms our narrative regarding institutional strength and maturity.”
The outcome of the new vote is too close to call, with the same officials who ran the last one probably remaining in charge of the rerun, said Phillip O. Nying’uro, chairman of the department of political science at the University of Nairobi.
“It is going to be very tricky; we may end up with the same outcomes,” he said.
IEBC Chairman Wafula Chebukati said the commission is awaiting the court’s written judgment before making any decisions about what action it will take. Odinga called for six electoral commission officials to face criminal prosecution.
“Clear evidence shows that the commission was taken over by criminals who ran the general elections using the technology system and inserted a computer-generated leadership,” he told reporters on Friday.
Kenya, the world’s largest shipper of black tea and a regional hub for companies including Google Inc. and Coca Cola Co., faces an increased chance of violence, said John Ashbourne, Africa economist at Capital Economics Ltd. in London.
“The ruling leaves the authorities with little time to improve or reform the scandal-plagued election commission, which may throw doubt on the result,” he said. “Opposition supporters –- whose distrust in the voting system appears to have been validated –- may see another win for president Kenyatta as proof that the authorities are conspiring against them.”
Kenyatta rejected the opposition’s demands that electoral officials vacate office and asked the body to announce a date for fresh elections, his office said in an emailed statement Saturday. The current commission will supervise the new vote, Kenyatta said.
Clashes between security forces and Odinga supporters claimed 24 lives after the result was declared on Aug. 11, according to the Kenyan National Commission on Human Rights. The opposition put the death toll at more than 100 people, while police confirmed 10 deaths in Nairobi and didn’t release tolls from other areas. The deaths evoked memories of two months of ethnic conflict after a disputed 2007 vote that left more than 1,100 people dead.
Kenyan shares tumbled and the currency dropped after the court ruling, reflecting perceptions that prolonged elections mean more uncertainty, said Razia Khan, chief Africa economist at Standard Chartered Plc in London. The benchmark stock index closed down 3.7 percent, while the shilling weakened 0.1 percent against the dollar. Safaricom Ltd., the country’s largest company, dropped as much as 10 percent, the biggest decline in a year.
East Africa’s largest economy is in the throes of its worst drought in three decades that’s curbed output of corn, a staple, and driven up consumer prices. Gross domestic product expanded at the slowest pace since 2014 in the first quarter as farming output shrank. The government expects growth to slow to 5.5 percent this year, from 5.8 percent in 2016.
“A re-run of the election will contribute to more uncertainty and prolong any return to business-as-usual,” Khan said. “The continuation of sub-par economic performance, and its implications for fiscal revenue, is of course a negative for bonds.”
Odinga, a former prime minister, waged unsuccessful presidential campaigns in 1997, 2007 and 2013. The Supreme Court threw out his allegations of rigging in the 2013 vote that propelled Kenyatta to power, a ruling Odinga has previously described as a “travesty of justice.”
A few hours after Kenya’s polling stations closed on Tuesday August 8th, the country’s Independent Electoral and Boundaries Commission began transmitting live results.
But even before it had a chance to complete the tallying process, the opposition candidate Raila Odinga and his National Super Alliance (NASA) disputed the credibility and fairness of the process, claiming that they had garnered 8.04 million votes against Uhuru Kenyatta’s 7.7 million.
These results differed widely from the official electoral figures which on Friday placed Kenyatta in the lead with 8.1 million votes, and Odinga in second place with 6.7 million.
History seems to be on the side of the Independent Electoral and Boundaries Commission: international observers – of which there were 400 at various stations on polling day – have by and large come out to say that the process was credible. If we take the practice of democracy as playing the game and abiding by the rules, then for Kenya the game is far from over.
In the end, the final judgement could be made by the country’s courts. The rules governing elections in Kenya are set down in the constitution which states that a candidate will be declared president if he or she has received more than half of all the votes cast in the election, and that at least 25% of the votes cast in each of more than half of the counties.
If indeed there is an election petition, both sides are heavily invested in the outcome. For Odinga it is do or die. He has unsuccessfully contested for the top seat three times. However, despite this being his last shot, he has maintained that legal recourse is not an option.
The future of his running mate Kalonzo Musyoka is also uncertain – results show that some of the candidates vying for gubernatorial seats on his Wiper party ticket were unsuccessful, thereby lowering his political party’s future value proposition.
For Kenyatta and Deputy President William Ruto the marriage of convenience is under pressure to continue for another five years to pave the way for Ruto’s succession.
Things that stood out
Despite the fears of post-election violence there was a lot of goodwill for this election to be a success. Campaigns for a “tribeless Kenya” and various activities that promoted peaceful elections were a part of the pre-poll fabric.
While there were multiple reports predicting violence, there was relative calm after voters had gone to the polls. And for the most part Kenyans have so far affirmed that no blood needs to be shed.
But there has been violence. Kenyans in low-income areas been caught up in deadly clashes with the police.
These incidents have been localised to opposition areas and the majority of Kenyans seem eager to return to normalcy. This resolve is being tested by the opposition alliance which announced on Sunday that it was preparing a post-election strategy. Many fear that this could heighten tensions further. The election, and its aftermath, provide an opportunity for Kenya to reflect on how the electoral process went and how, in the future, it can deal with complaints and inconsistencies better.
But there have been many positive reports on the election process. These, combined with what observers say was largely a free and fair election, have increased international confidence in Kenya’s election processes.
What was memorable
What will the 2017 election be remembered for?
The road to Canaan: The 2017 election was an incumbent election with polls consistently showing an incumbent win for Kenyatta. Nevertheless, the opposition colourfully portrayed their campaign as the Road to Canaan, with Joshua (their flag bearer Odinga) leading them to the Promised Land full of milk and honey. The biblical story of Joshua is of a military commander who takes the mantle from Moses. His mission is to take the Israelite tribes to the land of Canaan after 40 years of wandering. The story of Canaan is one of hope and the message resonated with many Kenyans.
The year of the independent candidate: Legislation that put a definitive end to party hopping after the party nomination process gave rise to the “big two” National Super Alliance and Jubilee Party coalitions.
In my opinion this legislation changed Kenya’s political landscape because smaller parties were swallowed up by the big coalitions. Many who tried to secure nominations from the Jubilee Party and National Super Alliance failed. They were therefore left no option but to stand as independent candidates if they wanted to keep alive their dreams of running for office.
But the election results have shown that the independent movement failed to get off the ground. By and large Kenyans favoured candidates from one of the big two coalitions. Only two counties – Isiolo and Laikipia – went against this trend, electing independent candidates as their next governors.
More women elected: In terms of gender representation, there’s a lot to be encouraged by, not least the fact that the first women governors were elected. The council of governors had previously been a male preserve. The number of women in elected seats also rose from 16 in 2013 to 22 in this election.
Leaders who work: The election results also showed the reduction in appetite for leaders who don’t deliver. This was clear from the number of incumbents who were unsuccessful in their bids to return to their posts.
In the end, election days come and go. The next phase is all that matters now. The intense electoral competition and the choices people made show that there is enough room for all Kenyans to participate – whether they belong to a big party or not – and to do so in a meaningful way.
There are eight candidates for the presidency in Kenya’s 2017 election. Of these, two are the main contenders; Uhuru Muigai Kenyatta and Raila Amolo Odinga. This is a replica of the 2013 polls where the two presidential candidates were the dominant opponents.
The running mate configuration has not changed either, with both retaining their previous partners. William Ruto for Kenyatta and Kalonzo Musyoka for Odinga. The only thing that has changed is their party identities.
Kenyatta’s 2013 Jubilee coalition is now the Jubilee Party, comprising most of the constituent parties that had been part of the coalition. The 2013 Jubilee formation was an alliance between parties loyal to the president, and his deputy William Ruto.
For its part Odinga’s camp underwent a coalition overhaul, morphing from the Coalition for Reforms and Democracy to the National Super Alliance. The coalition brings together several parties, both old and new, led by the Orange Democratic Movement, Odinga’s longtime party.
Latest polls have indicated that the two candidates are neck-and-neck. Both have factors working for and against them.
A few things are in Kenyatta’s favour. At 55 years of age, he is a young president who represents generational change. Kenyatta also comes from one of the wealthiest families in Kenya. Forbes Magazine ranks him as the 26th richest person in Africa, with an estimated fortune of $500m. This means that he’s been able to contribute financially to a vibrant campaign.
As the incumbent some would also argue that he has had access to state resources and agencies to facilitate his re-election. Incumbency has also allowed him to drive his campaign on the steam of his development record and flagship projects in infrastructure, the energy sector and public service delivery.
In terms of voting blocs, Kenyatta has the support of Kenya’s two most populous ethnic groupings: the Gikuyu, Embu and Meru (GEMA) and the Kalenjin. The registered voters in the GEMA grouping are approximately 5,588,389, in the Kalenjin are 2,324,559.
Combined, that’s 7,912,948 votes, which is equivalent to 40% of the electorate. That’s a formidable start when you consider that presidential strongholds have historically recorded a higher voter turnout during elections.
The Jubilee presidency is seen as a two-man show. This has contributed to the perception that Jubilee is not ethnically representative.
Odinga has many things going for him. High up on the list are his charisma and strong political mobilisation skills. Historically, Odinga has always been a formidable opposition politician; not being an incumbent has enabled him to galvanise effectively.
Odinga enjoys wider ethnic support compared to President Kenyatta, comprising among others the Kamba, Luhya, Luo and Maasai tribes. These communities comprise over a third of the voting population. But the disadvantage is their historically lower record of voter turnout.
At 72 years of age, Odinga represents the older generation of Kenyan leaders who joined politics in the 1970s and 80s. And this being his fourth attempt at the presidency, there’s lethargy among some of his supporters.
He’s viewed by some as power hungry and untrustworthy, especially because of his alleged association with Kenya’s 1982 coup. His calls for mass action after the contentious 2007 election, during a period that saw the displacement and death of thousands of Kenyans, also contributed to this perception.
The main political formations
There are two main formations in the 2017 election - the Jubilee Party and the National Super Alliance.
The Jubilee Party, formed in September 2016, followed a merger between The National Alliance and the United Republican Party representing two ethnic communities - the Kikuyu and the Kalenjin. The Jubilee Party also has the support of other political parties including the Kenya African National Union, NARC Kenya, the Labour Party and the Democratic Party amongst others.
The National Super Alliance is a coalition of political parties formed in April 2017. Its leading lights are Odinga’s Orange Democratic Movement, the Wiper Democratic Movement led by Kalonzo Musyoka, the Amani National Congress led by Musalia Mudavadi, Ford Kenya led by Moses Wetangula and Isaac Ruto’s Chama Cha Mashinani. The coalition brings together the Luo, Kamba and Luhya ethnic groups, and a section of the Kalenjin community.
In this election cycle party manifestos have become increasingly important. This explains the Jubilee administration’s scramble to complete promises outlined in its 2013 document.
The Jubilee Party has made even more promises in its recently launched manifesto. Three that have caught the public attention include the creation of 1.3 million jobs a year, free public secondary education and the expansion of Kenya’s food production capacity.
The National Super Alliance’s promises are more political. They include a constitutional amendment to provide for a hybrid executive system to foster national cohesion. Two other notable promises are to lower the cost of rent by enforcing the Rent Restriction Act and to implement free secondary education.
Strengths and weaknesses
The strengths of the Jubilee Party lie mainly in its incumbency and its development track record over the last four-and-a-half years. But the party has been weakened by divisions within its ranks. These were amplified during the campaign as disagreements broke out over the leadership of campaign teams. The ruling party is also handicapped to the extent that it’s not as ethnically diverse as its competitor.
The National Super Alliance’s main strength lies in its ethnic diversity. Its five principals represent different ethnic communities.
The super alliance also creatively captures the zeitgeist of a section of the electorate, with some of its campaign slogans such as vindu vichenjanga (‘things are a-changing’ in the Luhya dialect) making their way into popular use. It is riding on the euphoric wave that usually accompanies the hope of regime change.
One of its weaknesses, however, includes a perceived predilection to violence because the opposition has previously resorted to mass action. In 2016 for example, it organised a series of protests to mobilise for the removal of key members of the Independent Electoral and Boundaries commission, the body responsible for organising the general election.
Another weakness is its close association with allegedly corrupt financiers.
There is a perception that historically, the presidency has been the preserve of two ethnic groups – the Kikuyu and the Kalenjin. This feeling of disenfranchisement has become a key campaign issue.
There are however, some non-tribal issues that have taken the foreground. These include corruption, economic and social stability, lower cost of living and improved security.