Kenya will return to the polls on 17 October, after the Supreme Court annulled the presidential results from the August elections.
The original poll, held on 8 August, saw incumbent President, Uhuru Kenyatta, declared the winner with 54% of the vote, a lead of 1.4 million votes over the main opposition candidate, Raila Odinga.
On 1 September, Judges from the highest court in Kenya, the Supreme Court, voted 4 – 2 to annul the results and call for a fresh presidential poll.
The decision to invalidate the presidential election came as a shock to many, including the opposition, who initially said the court was not an option for contesting the election. The ruling is the first time an African court has cancelled an election result. African and international commentators have hailed it a win for democracy, and proof that African institutions can act independently to solve domestic issues.
In their ruling, the judges said the body charged with conducting the poll, the Independent Electoral and Boundaries Commission (IEBC), “failed, neglected, or refused to conduct the presidential election in a manner consistent with the dictates of the Constitution”.
The court found that the IEBC committed “irregularities and illegalities in the transmission of results” which harmed the integrity of the election. These irregularities were around how the votes were tallied, and how those results were sent to the national tallying centre, not the voting process.
Electoral officials at the country’s 40,883 polling stations record the presidential votes on what is known as Form 34A; copies of these forms are then sent to the national tallying centre and are used to verify digital results. When the final presidential election results were announced on 11 August, it was claimed up to 11,000 forms were missing, while many of the forms that were received had irregularities.
In the hours following the decision, Uhuru Kenyatta said the court went against the will of the people, and added that while he disagreed with the judges’ decision, he respected it. Kenyatta and other members of the Jubilee party have since turned on the Judiciary, hinting at future reforms. In the days following the decision, Kenyatta told a party meeting: “[Chief Justice] Maraga thinks he can overturn the will of the people…We shall show you in 60 days that the will of the people cannot be overturned by one or two individuals.”
The leader of the National Super Alliance (NASA), Raila Odinga, who had appealed the results, thanked the Supreme Court for standing up for the truth. He also criticised international observers, by saying: “with this courageous verdict we put on trial the international observers who moved fast to sanitize fraud.” International observers have stated that they will wait to see the Supreme Court’s full judgement before making a substantive response.
What happens from here?
Uncertainty and a charged political environment will mark the period leading up to the election. NASA has already threatened to boycott the re-run unless the IEBC implements a range of demands. These demands include reprinting Form34A to include the names of polling stations; sacking several IEBC commissioners, and launching criminal investigations into their conduct; auditing the electoral system including servers and infrastructure; and changing the date of the election to October 24 or 31. It is unlikely the opposition will follow through on their threat to boycott the election if these demands aren’t met. In comparison, the Jubilee party has expressed confidence in the IEBC to conduct the next poll.
The appointment of the IEBC commissions has always been contentious and is likely to be more so this time around. Both sides have already rejected the initial changes put forward by the IEBC in the days following the Supreme Court’s decision.
The IEBC is expected to make more changes to its staff and systems once the Supreme Court releases it full decision in the coming weeks. The release of the full decision is likely to fuel additional politicking by both sides and reignite the questions around the role international observers played in the August poll.
Following the Supreme Court’s decision to annul the results of the presidential poll, over 100 unsuccessful candidates have lodged appeals against their results. The strength of their cases is unknown. Courts will start hearing these challenges from mid-September.
If the election happens as planned on 17 October, the IEBC will have until 24 October to announce the results, with the new President sworn in by mid-December. Even if Odinga is successful in the re-run, his ability to implement any significant legislative agenda will be limited as the Jubilee party holds the balance of power in the Parliament and the Senate.
Economic growth is expected to continue to suffer in the weeks and months ahead. The economy has already had a slow start to the year, with Q1 growth at 4.7 per cent down from 5.9 per cent last year. On the day of the decision, the Nairobi Stock Exchange closed 3.5% lower, and it has closed down each day since. With consumers saving for school fees and the costs associated with travelling to rural areas to vote, local businesses will continue to feel the pinch of slow trade until the new president is sworn in and life returns to normal.
Until then, the country is back in campaign mode, with newspapers full of analysis and news from the campaign trail. But the dynamics have changed. Beforehand there were eight presidential and over 12,000 candidates vying for seats; now there are only two.
These dynamics will impact on the campaign significantly, as both leaders work to consolidate and grow their support base, which is mostly split along ethnic lines. Tensions rise during election campaigns, and with so much at stake in this election, observers are worried about what might play out in the weeks to come. Increased incidences of hate speech is being reported, and outspoken MP, Moses Kuria, was criticised after he launched a scathing attack on Odinga and NASA during a rally, which was also streamed on Facebook Live.
One week ago, Kenya’s highest court delivered a verdict that shocked a nation and the world. By annulling the results of the presidential campaign, they showed that courts are gaining the courage to take on a head of state. The coming weeks will be tense and filled with uncertainty on both sides of the political spectrum. But regardless of who wins the election, Kenya has already changed. Early shoots of hope in the independence of the country’s legal system are emerging, and as Justice Maraga said ahead of delivering the ruling: “The greatness of any nation lies in its fidelity to the Constitution, adherence to the rule of law and above all respect to God”.