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Not for the first time this year, Kenyan politics is in crisis mode. After the country’s Supreme Court voided the results of the August 8 presidential election, a new election was scheduled for October 26. Although this was intended to clarify who the country wants as its new leader and draw a line under previous controversies, the latest contest rapidly descended into acrimony and confusion before a single ballot had even been cast. At the time of writing, it is not clear who is running and whether the contest will actually be held in some parts of the country. Only one thing seems clear: it is extremely unlikely that these election results will be any more credible than those they replace.
This electoral impasse is taking place side by side with what can only be described as a standoff between opposition supporters and state security forces in some areas of the country. This was evident, for example, on Mashujaa Day (a national holiday to celebrate Kenyan heroes), when official celebrations had to be canceled for the first time since independence in four of six counties in Nyanza Province, the stronghold of opposition leader Raila Odinga’s National Super Alliance (NASA), owing to concerns that the proceedings would be disrupted by anti-election demonstrations. The only public function to mark election day in Kisumu, the region’s main city, was a political one organized by the opposition, where, despite the presence of various NASA luminaries, state security officers were notably absent. According to locals, it was “obvious” that had the police been there, they would have been chased away.
What triggered the current confusion was the Kenyan Supreme Court’s decision on September 1 to annul the results of the August 8 presidential election. As part of the decision, the court ordered the Independent and Electoral Boundaries Commission (IEBC), the organization responsible for running the polls, to hold a “fresh” poll within 60 days. Nullifying the election of a sitting president was an unprecedented act, and the decision was distinctive in its jurisprudence. The court effectively argued that it was not necessary to prove that malpractice had changed the outcome of the poll; procedural failures, most notably in the transmission of results and the refusal of the IEBC to provide access to its servers, were sufficient cause for it to be annulled.
Perhaps surprisingly, given the polarized nature of Kenyan politics, the court’s verdict initially enjoyed widespread public support. The ruling was met with spontaneous celebrations in opposition strongholds. A nationally representative opinion poll conducted a week later found that 77 percent of respondents were satisfied with the ruling. Yet Kenyans across the political divide interpreted the ruling in very different ways. For some, it simply represented the rejection of a problematic process. By contrast, for many opposition supporters, it was an endorsement of their belief that the process had not only been problematic, but that the presidential election—like those in 2007 and 2013—had been stolen.
Perceptions of the decision have diverged further since then. Many government supporters now say that the court is biased and the decision was illegitimate. This change of heart seems to have been driven by the nonstop propaganda against the Kenyan judiciary pushed by the ruling Jubilee Party. Although President Uhuru Kenyatta initially said he would respect the verdict, he went on to attack the judges, calling them “crooks,” alleging that they had ulterior motives and promising to “fix” the court if reelected. At the same time, the government has pushed through new legislation that, if the president signs into law, will effectively circumscribe the court’s powers by making it illegal to invalidate an election on procedural grounds alone.
The Supreme Court’s verdict has thus led to a process of politicization that has serious implications for perceptions of its neutrality and its capacity to stand above the political fray.
Opinions on the court’s verdict have also been shaped by the practical challenges that it has generated. The judges took a brave and admirable step to improve the quality of Kenyan elections and enforce the rules of the game, but precisely because decisions like this are so rare, it was not immediately apparent just how difficult it would be to manage the consequences.
The IEBC initially scheduled the new presidential election for October 17, but then pushed the date to October 26. Odinga, the main opposition candidate who was frustrated by the lack of change in either the commission’s leadership or processes and worried by the government’s aggressive stance on the court and its decision, announced he would not compete in these polls without a series of electoral reforms that he called “irreducible minimums.” More recently, Odinga has continued to insist that no elections should be held in October and urged his supporters to wait until the day before the new election for directions on what they should do.
Meanwhile, the IEBC itself has been in turmoil in the wake of the court decision, which identified multiple “irregularities and illegalities” in the August 8 polls. Divisions came to a head on October 17 when one of the commissioners, Roselyn Akombe, fled Kenya to the United States and resigned, stating that “the Commission has become a party to the current crisis.” The next day, the chair of the IEBC issued a lengthy public statement saying that the political conditions for a credible election do not exist. The much maligned chief electoral officer then announced that he was going to “step aside” for three weeks and would thus not be there to oversee the election. Unsurprisingly, these developments have further undermined public confidence in the commission and eroded the morale of local IEBC staff, many of whom feel abandoned by their seniors.
Given the IEBC’s failings and political leaders’ prevarication, a number of international and local civil society organizations—including the International Crisis Group—have called for the elections to be postponed. Of particular concern is whether polling stations will be able to open in opposition strongholds. Moreover, even if they do open, those who want to vote may not be able to do so. Some fear that they might be targeted by opposition supporters for betraying calls for no elections to be held. Meanwhile, some stations may not have sufficient staff. In short, although the IEBC has recruited staff to man polling stations across the country, a number of training sessions for these officials in opposition strongholds have been either disrupted or very poorly attended, raising questions about whether all of those recruited will turn up to work on Thursday, and whether those who do turn up will know what to do. It seems now that the upheaval generated by invalidating one election makes it extremely difficult—perhaps impossible—to hold a fresh one just 60 days later, especially in a heated political context.
But the crisis is not the fault of the Supreme Court. The root of the current impasse lies deep in Kenya’s political history. One reason that the court’s judgment has led to so much confusion is that the country’s main political leaders have eschewed a conciliatory stance in favour of brinkmanship. NASA has used the threat of an electoral boycott in a bid to force through reforms, while Jubilee has ratcheted up the stakes with its regressive legislation. Kenyatta and Odinga are locked in a dangerous game of chicken, pushing things to the limit to see who will blink first.
The root of the current impasse lies deep in Kenya’s political history.
To be sure, there has been some small progress. Away from the headlines, Odinga and Kenyatta have traded some implicit concessions: the opposition leader temporarily suspended popular protests, while the president has not yet assented to the new legislation mentioned above, although he has said that he will. In public, however, each maintains a hard-line stance, encouraging polarization.
The current standoff between the two leaders reflects a history of political polarization in what remains essentially a winner-takes-all political system in Kenya. The feelings of marginalization are particularly strong among Odinga’s Luo community: many argue that its members enjoyed high levels of education and economic opportunities at the time of independence in 1963, but were then politically and economically neglected when their leaders fell out with President Jomo Kenyatta. Few Luo were appointed to high office, social services were neglected, and industries became rundown. The implication is that this history of economic and political marginalization would be reversed under an Odinga presidency. The community’s belief that Odinga was unfairly denied the presidency in 2007, 2013, and 2017 strengthened these feelings, however. And the level of police brutality used in response to recent protests has made matters even worse in this regard.
Many in Kenyatta’s Kikuyu community, in contrast, fear that they would be marginalized were Odinga to take power, which helps to explain efforts to ensure the continuation of the status quo. The 2010 constitution was, among other things, intended to resolve these issues by introducing 47 new county governments that would give Kenya’s different ethnic groups a degree of autonomy. Although the election of county governors and senators has gone a long way to make opposition supporters feel that they have a stake in the system, they pale in comparison to the significance of the presidency, which remains the ultimate prize in the context of high inequality and limited opportunities for many.
It is the zero-sum game generated by Kenya’s political history that makes it so hard for leaders to compromise and so difficult to reform the electoral system. And it is these hardened political identities that have made it so difficult to respond constructively to the Supreme Court’s verdict and reform the IEBC. Both sides laud the rule of law and the court when they benefit them, and criticize them when they do not. In doing so, both sides risk politicizing not only the court but the wider political system that they are seeking to protect. In this sense, no matter who wins the 2017 presidential election, the biggest loser could be the Kenyan constitution.