Starting over again
NEWS ANALYSIS: Historical significance of Kenya's election ruling
Democracy has triumphed with the supreme court of Kenya’s decision to annul the result of the country’s presidential election, demonstrating that the judiciary can be independent from the executive
It would be hard to overstate the historical significance of the supreme court of Kenya’s decision last week to overturn the re-election of President Uhuru Kenyatta. It was, quite simply, a seismic event and its implications for Kenya and democracy in Africa will be fully understood only in the months and years to come.
As the judges ruled four to two to overturn the presidential election result and void Kenyatta’s win, they opened the door to an "alternative" reality in which fraudulent elections are challenged and democratic standards upheld. Perhaps even more importantly, they proved that the Kenyan judiciary can indeed be independent from the executive, even when the stakes are as high as the re-election of Jomo Kenyatta’s son.
"They have disrupted the system and the cycle of fraud and impunity, and opened a new page of democracy in Kenya and Africa," says Dennis Owino, a Kenyan commentator on politics and governance.
What it means: Kenya must organise new presidential elections within 60 days
More than 15m Kenyans voted on August 8, and 54% of those votes went to Kenyatta, according to results announced by the country’s electoral commission. The results were soon challenged by Raila Odinga, whose coalition claimed it had evidence that the electronic system compiling the votes had been hacked, and that forms that were meant to back up the electronic results sent by polling stations were not being uploaded.
His claim, now vindicated by the supreme court, sparked several days of protest in opposition strongholds. The demonstrations were violently repressed by the police, which led to the death of at least 21 people.
Odinga had initially refused to take the case to court — in 2013, his attempt to challenge Kenyatta’s win in court had failed — but he eventually changed his mind.
"It’s a historic day for the people of Kenya and by extension the people of Africa," he said of the surprise ruling. "For the first time in the history of African democratisation, a ruling has been made by a court nullifying irregular elections of the president."
Kenya must now organise new presidential elections within 60 days, though the details are still unclear.
At the heart of the court’s ruling is the electoral commission’s poor management of the process. Judge David Maraga, the chief justice, said it had "failed, neglected or refused to conduct the presidential election in a manner consistent with the dictates of the constitution".
[Kenyatta] plainly threatened the judiciary and accused [the judges] them of having been bribed, which is preposterousDennis Owino
The National Super Alliance, Odinga’s coalition, has demanded complete reform of the commission’s secretariat and the resignation of six officials, including commission CEO Ezra Chiloba. But William Ruto, Kenyatta’s deputy, says government will not alter the commission’s composition, foreshadowing yet another battle.
Nanjala Nyabola, a political analyst in Nairobi, says: "I think there will be a lot of pressure, especially on the chair and the CEO to resign. But there is no clear procedure from here on. It will be a smaller race and easier to manage, and everybody will be paying more attention, so the commission will have to do a better job.
"But it is also important to separate the significance of what the judiciary ruled, and what happens next. Things are not going to be perfect all of a sudden, but it is an important step."
The electoral commission conundrum may not be the only obstacle to a free and fair rematch. In his initial address to the nation from State House following the ruling, Kenyatta delivered a soothing speech to his followers, calling them to accept the judgment and react peacefully. But hours later, he was at the Burma market in Nairobi, a Kikuyu community stronghold, where he addressed the crowd in Swahili and Kikuyu, clearly appealing to his ethnic base.
Owino says: "The tone was totally different from the State House speech. He plainly threatened the judiciary and accused [the judges] of having been bribed, which is preposterous."
On Monday, Kenyan cartoonist Gado published a drawing illustrating a postelection Kenyatta calmly telling Odinga to take his objection "to the court; we have faith in our judiciary", while opposition supporters swear at and insult the supreme court. A second image shows just how much the situation has reversed: Odinga hails the court decision and Kenyatta is furious about it.
Both men appear to be missing the point. The victory is for the Kenyan people and democracy. No-one, yet, has won or lost the presidency.