Why Kenya’s Supreme Court Can’t Solve the Country’s Electoral Crisis

On September 1, 2017, the Supreme Court of Kenya delivered its verdict on the presidential election that took place in August and handed sitting President Uhuru Kenyatta another term despite allegations of fraud by his main rival, Raila Odinga. The opposition supporters packed into the courtroom were nervous with anticipation, but many international commentators and representatives didn’t even attend the proceedings, assuming that—as in every previous electoral petition in African history—the judiciary would find a way to uphold the initial results.

In fact, the court’s four to two decision that Kenyatta’s reelection was illegal and that Kenya would need to hold a fresh vote within 60 days sent shockwaves through the political system. In the courtroom, the decision was met first with gasps of disbelief and then with a spontaneous outbreak of celebratory song from Odinga’s allies. The verdict was also lauded in media outlets around the world, by both analysts with a deep understanding of the events and those who assumed that any assertion of judicial independence had to be a positive development on a continent that is experiencing a prolonged democratic recession. Some, including Civicus, an international civil society alliance, and the East African newspaper, which is sold throughout the region, even speculated that this legal breakthrough might unleash a tide of judicial activism in defense of the rule of law across Africa.

Two months later, the impact of that verdict on Kenyan democracy seems much more uncertain. The willingness of the four judges to challenge the status quo placed them directly in the political firing line. At the same time, their decision has done little to resolve the crisis. Instead, the second election on October 26, which was supposed to clarify who Kenyans wanted as their president, quickly descended into acrimony and farce. As a result, a growing number of commentators have been questioning whether the court would have done better to pull its punches and uphold the first-round results.

In the repeat election, the withdrawal of Odinga from the contest—on the grounds that the re-run was unlikely to be any more credible than the original poll—resulted in a landslide victory for Kenyatta, who secured over 98 percent of the vote. That outcome, however, has itself been challenged by a new set of petitions, and so the outcome of the re-run will also be decided in court.

In a bid to distance itself from the electoral process, which it says is a sham, Odinga’s National Super Alliance (NASA) opted not to bring a second petition itself. Instead, the opposition’s concerns are represented by two other petitions, one brought by businessman and politician Harun Mwau and the other by two civil society groups.

Mwau’s case rests on the argument that there should have been a fresh nomination process before candidates were confirmed for the repeat election. The civil society case adds a number of further points, claiming that the electoral commission did not conduct the election in conformity with the constitution and relevant laws. Specific failings highlighted include the fact that the polls did not open in all 290 constituencies because of protests by opposition supporters, the lack of reform to the electoral commission, and irregularities in the tallying process.

The court may be wary of defying the president a second time, especially given the deteriorating political context.

The civil society petition appears to include sufficient grounds for the Supreme Court to veto Kenyatta’s election should it wish to. When they struck down the first election, the judges effectively argued that an election can be annulled on procedural grounds alone. The court, however, may be wary of defying the president a second time, especially given the deteriorating political context. Given that the first verdict was a split decision, with four judges voting to support the petition and two judges voting to confirm Kenyatta’s victory, there is a good chance that there will no longer be a majority willing to stand in the president’s way.

JUDICIAL VULNERABILITIES 

There are two main reasons for the Supreme Court’s limited ability to resolve Kenya’s electoral crisis. First, like most judiciaries around the world, it lacks the power of the purse or the sword. That is, in the absence of financial resources, enforcement capacity, and legislative power, it is unable to determine how others respond to its rulings. Second, the court operates within a wider political system in which its own legitimacy has yet to be fully accepted, the rule of law is not always respected, and partisan political interference compromises nearly all democratic institutions. As a consequence, the way that judicial decisions play out can be highly unpredictable, especially when the court sets new precedents.

The Supreme Court is also a very young institution, and its reputation has been shaped by the extremely political work that it is mandated to do under the new constitution that established it in 2010. Having only taken up his position in 2011, the court’s first chief justice, former reform activist Willy Mutunga, had barely warmed his seat before having to rule on a petition against the outcome of the 2013 presidential election. The main candidates in that contest were the same as in 2017, but the outcome was different, as the judges voted unanimously to uphold Kenyatta’s victory and reject Odinga’s petition. This verdict led some of Mutunga’s former allies in civil society to criticize him fiercely, and it undermined the confidence of the opposition in the courts until the shock judgement four years later.

Ever since its 2013 election ruling, the judiciary has become increasingly enmeshed in the cut and thrust of electoral politics. In 2017, for example, judges have been asked to rule on everything from who should be allowed to stand for election to how ballot papers should be procured, what type of technology should be used, when the election should be held, and much more besides. As the political role of the courts has become increasingly high profile, the media scrutiny and political pressure facing judges have intensified.

The first challenge to the court’s nullification of Kenyatta’s victory came almost immediately. Ahead of the verdict, government leaders had insisted that the opposition take their case through the proper channels and abide by the decision of the judiciary. Afterward, they found it difficult to take their own advice. Having initially stated that he would abide by the Supreme Court’s decision, Kenyatta soon went on to attack the judges, branding them “crooks.”

These statements were followed by a campaign of rumors and allegations designed to undermine the reputations of the four judges who voted to overturn Kenyatta’s victory. Although it is impossible to say with certainty who instigated these stories, many of those who went out of their way to imply that the opposition and the court were “co-conspirators,” such as the well-known commentator Mutahi Ngunyi, are known to be supportive of the ruling Jubilee Party.

Nothing better illustrated the dangerous position Supreme Court judges are now in than when a gunman shot and seriously wounded the driver-bodyguard of Deputy Chief Justice Philomena Mwilu on October 24. The government has suggested that the attack was a robbery rather than anything more serious. Sources close to the judges, however, believe it was a politically motivated attack designed to compromise judicial independence.

The very next day, the court was due to hear a last-minute request to move the date of the repeat election, scheduled for October 26. Opposition leaders argued that the conditions did not exist for a credible vote and wanted a delay, whereas the government wished to see the election go ahead, keen to have its authority confirmed. Mwilu, as well as several other judges, did not appear. As a result, the court lacked the quorum required to hear the case, so the election went ahead. In response, European Union election monitors released a statement calling for judges to be allowed to conduct their work “in freedom and safety.”

THE NEVERENDING ELECTION

Unfortunately for the judges, there is no end in sight for the crisis. Despite the Supreme Court’s best intentions, the October 26 repeat election raised more questions than it answered. On the one hand, Odinga’s withdrawal ensured that it would be subject to questions regarding its credibility and legitimacy. On the other hand, the resignation of Commissioner Roselyn Akombe from the Kenyan electoral commission a week ahead of the second election exposed the dysfunctionality at the heart of that institution. All this further undermined Kenyans’ confidence in the electoral management body just days before they were called upon by government politicians to head back to the polls.

On election day itself, allegations of vote tampering, confusion over the level of turnout, and the inability of the electoral commission to open polling stations in a small number of counties because of opposition protests all raised concerns about the credibility and legality of the process. Although Odinga’s party has publicly said that it will not bring another petition, others already have. As a result, the matter will now be heading back to the Supreme Court, and judges will once again find themselves caught between a rock and hard place. This time, though, they may find it significantly harder not to be influenced by the potential personal and political costs of judicial decisions.