In a 4-2-majority decision on 1 September 2017, Kenya’s Supreme Court annulled the presidential election, which was conducted on 8 August 2017. Four judges, with two dissenting, held that the election was not held in accordance with the Constitution of Kenya and applicable laws and regulations. The court noted the electoral management body (the Independent Electoral and Boundaries Commission (IEBC)), committed illegalities and irregularities that affected the presidential election result. The Court concluded that President Uhuru was not validly elected and thus ordered a fresh presidential election. Soon after, the chair of the IEBC announced a fresh date of 17 October 2017. The cancellation of Kenya’s presidential election is the first in Africa and fourth in the world (after Ukraine in 2004, Maldives in 2013, and Austria in 2016). However, Kenya’s political context and management of electoral processes is for a clearer understanding of the unprecedented court’s decision.
Kenya’s politics of presidential elections: background and context
Unlike some countries, in Africa and beyond, where politics are dominated by ruling parties or incumbents, Kenya’s politics are divided, almost in equal shares, between the ruling and opposition coalitions. This fact is roughly evidenced in the 54 percent versus 47 percent if the nullified presidential election result of August 2017 is anything to go by. Indeed, even in 2013, President Uhuru won with a 50.51 percent of the total vote against Hon. Raila Odinga’s 43.7 percent. As a result of this context, the presidential election is highly contested with ripples felt in the entire electoral process. Kenya’s political context can be contrasted, for example, with the recently concluded Rwandan presidential election where the incumbent, Mr. Paul Kagame, garnered 99 percent of the vote!
The Constitution requires a successful candidate for the presidency to garner at least 50 percent plus one vote (simple majority of the total vote), and at least 25 percent of the votes in half of the country’s 47 county governments (Kenya’s territory is divided into 47 counties) in order to win the presidential vote. This requirement was introduced after former President Daniel Moi won two elections with 36 percent of the vote (1992 and 1997), courtesy of an ethnically split opposition.
Kenya’s politics, especially presidential elections, are fractured along ethnic fault lines. However, while Kenya has approximately 43 ethnic communities, the presidential race is concentrated between the “big five” ethnic groups (Kikuyu, Kalenjin, Luhya, Luo and Kamba) who together, constitute slightly more than one half of Kenya’s population of an estimated 45 million people (2016 estimates); the rest of the communities are usually divided between the big contenders. No single community has an outright majority in terms of numbers; the largest community (Kikuyu) has approximately 22 percent of the total population. While the margin requirement has made presidential candidates to seek votes beyond their ethnic base, one unintended consequence has been the building ethnic-based coalitions and counter-coalitions.
In the 2013 and 2017 general elections, leaders of the major political coalitions were drawn from all the five largest ethnic groups; Uhuru (a Kikuyu) and William Ruto (a Kalenjin) versus Raila Odinga (a Luo) and Kalonzo Musyoka (a Kamba). Other top coalition leaders were also drawn from the larger groups. Divisive use of presidential powers by successive presidents has transformed presidential elections to basically ethnic contests, due to a perception that “ethnic incumbency” is leads to ethnic-based benefits such as development and services to the exclusion of “outsider” ethnic groups at the periphery of power.
Management of elections in Kenya
The high-stakes elections have led to extensive reforms to the elections body in a bid to ensure free fair, credible and transparent elections. After the 2007 elections violence, the Electoral Commission of Kenya was disbanded and replaced by an interim team. A Commission was established to manage the 2013 general election. However, the opposition was dissatisfied with the Commission’s handling of the 2013 general election and other corruption allegations against the Commissioners and staff. British firms that were engaged in the ballot printing fraud were found guilty of corrupt practices by English courts but the matter was never concluded in Kenya. After sustained weekly protests, Commissioners were forced to resign and a new team was constituted, 9 months before the August 2017 election.
The presidential petition of 2017
During the hearing, evidence presented in Court pointed to malpractices and irresponsible management of the elections. Prior to the elections, a Court had nullified the procurement of ballot papers citing irregularities and breach of the law. While the actual voting process went on without major hitches, there were serious problems with the transmission and tallying of votes. Over 600 polling stations did not submit results. The Commission’s lawyers fumbled to explain the extra 570 000 presidential votes cast for the presidency in comparison with the total votes cast for county governors (ideally the total votes cast for governors should be similar to the total presidential vote).
The main argument of Commission and President Uhuru’s lawyers was that while irregularities existed, they did not affect the collective will of the voters. The lawyers argued that cancelling the election was tantamount to punishing voters for the sins of the electoral commission. Majority of the court judges were not convinced.
Implosion at the Election Commission after court decision?
As preparations for the re-run are on, the Commission seems entangled in blame games over the cancelled election, pitting commissioners and secretariat. A leaked memo from the Chair of the Commission seems to lay blame on the Secretariat for the mismanagement of the election. The chair also published a list of a “project team” that was to manage the re-run of the elections. The decision to appoint the “project team” seems to have been made without the involvement of the Secretary to the Commission.
Furthermore, Raila’s team has called for disbandment of the current team while the ruling coalition has opposed the “project team” citing bias of some of the members on the list. One of the presidential candidates called for UN-managed election due to lack of credibility of the Commission.
Way forward after the 2017 presidential election?
As the country prepares for the 17 October presidential vote, a number of questions are being raised about the legitimacy of the disgraced IEBC and its ability to deliver a credible presidential election. There is need for an urgent solution to the current challenges facing the electoral commission. Members of Parliament (both the Senate and National Assembly) have already been sworn in. Parliament should urgently convene and undertake a number of special measures (including oversight of the Commission by a bi-partisan body established by Parliament) in order to ensure that the coming elections are carried out in a transparent and accountable manner that builds public trust. Currently, both political parties are engaged with destructive political campaigns against the Supreme Court (the ruling coalition) and the electoral commission (opposition coalitions) and this is doing more harm than good in terms of building credible and effective institutions of democratic governance in the country.
By Conrad M. Bosire (Advisor at Katiba Institute, Nairobi) [email protected]