Kenya’s Supreme Court has given an impossible deadline for the repeat election

Opposition Kenyan leader Raila Odinga speaks out after the election was declared invalid. Reuters/Baz Ratner

Author

Dominic Burbidge

Postdoctoral Researcher, Faculty of Law, University of Oxford

Disclosure statement

Dominic Burbidge does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.

The Kenyan Supreme Court has found that the August 8 presidential election result is invalid. It blames the electoral commission, not the declared winner, Uhuru Kenyatta. Kenya’s leading newspaper praises the decision as a step towards the rule of law, but I am less sure about what this means for the ability of the political establishment to stick to the terms of the country’s constitution.

The Supreme Court has given the country 60 days to hold fresh elections. The time period is in accordance with section 140 (3) of the Constitution, but the court failed to tell the public exactly what the Independent Electoral and Boundaries Commission (IEBC) had done wrong. This leaves Kenya with a compromised commission rerunning an election.

Chief Justice David Maraga noted that the court had previously failed to provide a full judgment on the 2013 elections and this had not been received well. He then did exactly the same. Of course, the court had to provide a judgment on the opposition’s petition within 14 days, as stipulated by the Constitution. This is the period before the president-elect is inaugurated. The court would have sparked a constitutional crisis if it had not made any decision.

But by not explaining how the IEBC has failed, the court has created a problem. It’s impossible to organise the next election and reform the commission in the time given.

Time pressure

The court gave itself up to 21 more days to deliver its full judgment. This would leave the country with only 39 days before the fresh election. Already, opposition leader Raila Odinga has declared that his coalition will refuse to participate in presidential elections under the current leadership of the IEBC.

But, as a newspaper commentator observes, it’s just not feasible to remove IEBC commissioners without a tribunal, which is then reviewed by parliament. Complicating matters further, three citizens have filed a separate petition to ask the courts to remove certain IEBC officials over their wrongdoing.

Even once the full judgment is handed down within 21 days of the ruling, it probably won’t indicate criminality at the level of individuals. The Supreme Court was asked only to determine the validity of the election overall. Its full judgment can indicate how the process of the election must be improved.

The election was judged to be void because the electoral commission was at fault. This suggests it must change its procedures – and perhaps its personnel – if better elections are to take place. A new election must avoid the errors of the previous one.

Political scholar Gabrielle Lynch explains some of the corrections that have to be made. These include the process for transmitting results, the use of security forces and the uneven use of state resources.

Few of these suggested corrections will be feasible within the allotted timeframe.

Serious problems

Indeed, the problems are serious. Months before the election was held, the courts ordered the IEBC to stop printing ballot papers, because ofclaims that the Dubai-based firm Ghurair held too many links to Kenyatta.

The claim against Ghurair was dismissed due to insufficient evidence. But part of the IEBC’s successful defence against the court order was the time pressure of having to hold an election in a few months’ time. If time pressure was a valid reason then, why would it not be now? Why would an even more rushed election be credible?

The murder of the IEBC’s IT manager, Chris Msando, will now be under even closer scrutiny by the media. But even if the crime was directly related to the muddled tallying of votes, there isn’t time before the rerun to find individuals guilty. It is highly unlikely the full Supreme Court judgment will touch upon this tense topic. And that further reduces the credibility of the current IEBC.

Credibility concerns

The wider concerns with the IEBC date back to the “Chickengate” scandal. A UK court found a UK firm had bribed the IEBC (then the Interim Independent Electoral Commission) to get the contract to print ballot papers for the 2010 Kenyan constitutional referendum.

The UK co-conspirators were found guilty. But no-one from the Kenyan side was put behind bars by Kenyan courts. This created mistrust of the IEBC leaders. The current crisis will revive past anxieties like these, but leave no time for meaningful reform.

In Kenyan elections, local witnesses must sign the official forms to say the local tally is accurate. Central tallying organised electronically must then match with these local forms. The election is considered free and fair if this is done properly. The Supreme Court has ruled that both the IEBC as a whole and its chairperson, Wafula Chebukati, are responsible for the failure on 8 August.

Chebukati has refused to stand down. His response doesn’t boost public confidence in the institution. If the public is to trust the rerun, he must go.

Asking for more time

The IEBC should then petition the Supreme Court to give it more time.

It was done before, when the 2013 election was delayed because of the difficulty of implementing aspects of the new Constitution.

Section 86 of the Constitution requires the IEBC to collate the results of an election openly and accurately. At present, it can’t meet this requirement because it does not know what it must do differently from before. The IEBC should therefore depend on Section 86 when it asks the Supreme Court for more time.

How Kenya can make its ethnic democracy work

When Kenyans vote, ethnic conflict is never too far behind. Reuters/Thomas Mukoya

Kevin Maina Associate Fellow, SMC University. Kevin Maina is undertaking research within the Eastern African Resilience Innovation Hub (EARIH) that is being funded by the International Development Research Centre (IDRC)

This past election has confirmed that Kenya’s democracy is not fit for purpose. I say this because the country’s democracy hasn’t taken into account Kenya’s ethnic makeup. Ethnic tensions recur every election cycle, making it pretty obvious that politics in Kenya is a game of ethnic numbers.

Call it ethnic majoritarianism if you like – the idea that a majority tribe, or coalition of tribes, has the power to make decisions that affect the whole society.

Kenyans live in an ethnic state that exists within the civic space, guided by a constitution, but dominated by institutions that are populated by a positive sum group. By positive sum I mean the two tribes that have occupied the presidency since independence – the Kikuyu and the Kalenjin .

The recent election that saw President Uhuru Kenyatta garner 8.2 million votes, is testament to how entrenched the voting patterns of these two communities have become. Although official figures of the 2017 election are subject to a court decision, the trend of Kikuyus and Kalenjins voting for Kenyatta is pretty clear.

But I would argue that this ethnically motivated voting pattern is not the problem. The problem is that the constitution does not provide a mechanism to accommodate the best loser, who in this case garnered 6.7 million votes. Raila Odinga’s 6.7 million votes were largely drawn from the Luo, Kamba and Luhya communities.

History of ethnic domination

To understand how Kenya got to this point, it is important to look back on the arc of history. Immediately after independence Kenya adopted a centralised Westminster model of government.

This model vested imperial powers in the presidency. It meant that the president had powers to hire and fire cabinet, to dissolve parliament and hire members of the judiciary. In short the presidency controlled the three arms of government: the executive, the legislature and the judiciary.

These imperial powers are akin to the powers Turkish President Recep Erdogan recently acquired in the April 2017 referendum. Erdogan now has powers to directly appoint top public officials, intervene in the judiciary, and decide whether or not to impose a state of emergency.

In Kenya, there’s the ethnic factor to contend with in this mix.

Under the Jomo Kenyatta (1964-1978), Daniel Arap Moi (1978-2002) and Mwai Kibaki (2002-2013) regimes the allocation of resources was centralised. And because power was vested in one office, it was perceived as favouring the tribe of the occupier.

Mwai Kibaki, who took over from Daniel Arap Moi in 2002, was the first president who was not a member of the Kenya African National Union, which used to be Kenya’s only political party.

He was able to ascend to the presidency because of a 1991 amendment to the independence constitution that introduced a multi-party system. At the time it was believed that multi-partyism would limit presidential excesses. The move set the tone for constitutional change.

In 2010, the 1964 constitution was replaced in a bid to insulate Kenya from the post-election debacle of 2007, when violence erupted, pitting supporters of the two main protagonists, President Mwai Kibaki and Orange Democratic Movement leader Raila Odinga, against each other.

The new constitution introduced a devolved system of government and emphasised the separation of powers. But how effective was it in changing Kenya’s political landscape? I would argue that it didn’t take the country’s ethnic landscape into consideration which explains the tensions during every election cycle.

Accepting Kenya’s ethnic state

Ethnic mobilisation in Kenya’s presidential elections has been the norm. While most Kenyans refuse to accept their ethnic biases, these have resulted in a cycle of election violence. Violence erupts because some people feel excluded from power, while others feel entitled to it.

The country’s laws don’t help because they don’t consider the complexities of ethnicity, focusing on the functions of government and how power is exercised while remaining silent on who should hold that power. That part is left to a democracy, which I would argue, isn’t fit for purpose.

Seeking solutions

A possible solution would be to adopt a hybrid model that would maintain parts of Kenya’s current system of government while completing the ethnic equation. The aim would be to ensure that no tribe, nor constellation of tribes, could lord it over the others.

This hybrid solution is borrowed from Kenya’s pre-independence Legislative Council of 1957. Eight native Kenyans were elected to the council to represent the country’s eight provinces in what was a majority white legislature.

Based on this system of provincial representation, my hybrid model would do away with the presidential ballot. Kenyans would not go to the polls to elect a president. Rather, each ethnic region would choose its own representative leader. In this way each of the country’s 44 tribes would have its own representative.

There would be one extra slot for a neutral candidate. This would bring the tally of representative leaders to 45. For the lower levels of government, Kenyans would elect the same representatives from the ward to the gubernatorial level.

The 45 leaders would choose a head of state from their ranks. No one tribe would be able to serve more than two terms until the presidency had rotated through all the 45 communities. The head of state would appoint a prime minister from parliament to be the head of government: he or she would appoint the cabinet.

The structure of the rest of government would remain as is.

The rationale would be to shift the focus from national to local representation. This would promote ethnic cohesion by removing the tensions that arise when Kenyan voters choose a president. More importantly it would secure Kenyans against feelings of exclusion and therefore strengthen the national fabric.

This system of governance might sound impossible to some. But a similar model exists in Switzerland where a unique federal government model ensures that the presidency is rotational. So it is possible. And it might be the only way for Kenyans to restore their faith in a collective nationhood.

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Raila Odinga may sue Kenya Election Commission

Opposition leader, Raila Odinga, has said officials of the Elections Commission should be prosecuted.

Raila Odinga may sue election Commission

“I don’t trust this Commission,” he noted. 

Kenya Supreme Court today declared the presidential elections null and void after the opposition filed complaints of election fraud and tampering of voter electric systems.

Uhuru Kenyatta who was declared winner after the elections said “personally he doesn’t agree with the outcome of the ruling, but will respect the court’s decision”. 

The elections is to be held in 60 days, as ruled by the Supreme Court, but the pronouncement by Odinga that he no longer trust the Elections Commission could create another hurdle for the slated presidential election.