The sparks fly: Supporters of presidential candidate Raila Odinga react after the re-election of President Uhuru Kenyatta. Picture: AFP / YASUYOSHI CHIBA
The sparks fly: Supporters of presidential candidate Raila Odinga react after the re-election of President Uhuru Kenyatta. Picture: AFP / YASUYOSHI CHIBA

When Kenya’s supreme court overturned the result of the country’s August presidential election citing flaws in the process, the decision was hailed as unprecedented across the continent — a rare example of a strong institution standing up to strongmen.

Kenyans of all political stripes, even some of those who had supported the poll’s winner, incumbent president Uhuru Kenyatta, basked in the limelight of international praise. They lionised Chief Justice David Maraga and applauded the court finding that the correct processes had not been followed by the electoral commission and the poll would have to be run again.

However, last week the court suffered a spectacular fall from grace when three human rights activists turned to it once again to decide if the country was ready for the fresh election within the tight time frame of 60 days, as laid out in the constitution.

There were fears — voiced by the chairman of the electoral commission itself — that the poll could not be free and fair because of political interference and intimidation, which had divided the commission’s staff between opposition and government camps.

The day before the election, as a battery of local and international journalists breathlessly reported events from outside a police cordon around the court, Maraga, a staunch Seventh-day Adventist known for his upright moral stance, appeared on the bench with only one other judge. It quickly became apparent that five others were missing, which meant the court could not form a quorum to rule.

Maraga confirmed gloomily that the deputy chief justice was absent because her bodyguard had been shot in the chest and face by unknown assailants the night before; another was absent because of sickness; a third had missed her flight to Nairobi; and two others had not explained their absence and could not be reached.

The result was celebrated by Kenyatta’s powerful deputy, William Ruto, who said an "evil" plan to stop the election from going ahead had been "thwarted".

Raila Odinga’s opposition coalition, the National Super Alliance (Nasa), condemned the political "mischief" it said had stopped the court from ruling.

Nasa had backed the court action and called for a delay to the poll, arguing that the electoral commission had failed to institute enough of the reforms recommended in the original supreme court ruling.

The coalition said it would press on with its boycott of the poll. It would also pursue a "campaign of defiance" against the fresh administration led by Kenyatta that would inevitably follow as, without Odinga as a challenger, the president faced just a handful of marginal candidates in the October 26 vote.

The court’s vacillation and Odinga’s response have deepened the climate of suspicion and fear in the country.

"Whatever the judges’ excuses, it took away something we felt we had gained," says a political commentator, who did not wish to be named in the polarised environment.

"There had been rumours Jubilee [Kenyatta’s coalition] would prevent the judges from sitting, even by arresting them. We didn’t see that actual show of force, but the rumours seem to have had the same effect."

Kenyatta was declared president with a 40% voter turnout, and Kenya now faces a political impasse, with almost half the country aggrieved and divided.

Talk of a deal by Kenyatta has been rejected by analysts, who point out that once he has appeased those in his own coalition who brought in votes for him, there will be no room in the higher echelons of government for Odinga’s coalition chiefs.

Monica Juma, a veteran Kenyatta colleague, now principal secretary for Kenya’s foreign affairs ministry, rejects the suggestion that the president’s election lacked legitimacy.

"Often when elections have to be repeated they run below the half mark," she says. "You can call this election whatever you want, but it was done in strict compliance with our constitutional order and in protection of our democracy."

It seems, once again, that Kenyans will turn to the supreme court for guidance on the way forward. Even then, there are questions around whether the president will accept further legal guidance, having made no secret of his dismay at the judge’s intervention to overturn his original win.

Martin Kimani, Kenyatta’s security and counterterrorism chief, says Kenya has to move forward rather than be entrenched in a "Kafkaesque" vortex of court challenges. "Kenyans are really exhausted, our economy is damaged, investors are staying away," he says. "We have to move forward now."

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