On Friday, September 1st, in a landmark decision, the Kenyan Supreme Court ruled 4-2 that the result of last month’s presidential election, which led to a victory for President Uhuru Kenyatta with 54% of the vote, was invalid. In response to a challenge from opposition leader Raila Odinga, it was decided that “irregularities and illegalities in the transmission of results” meant that the election “was not conducted in accordance with the [C]onstitution.” The election must be re-run within the next 60 days.
The decision has been hailed by many as a victory for democracy, with African Union Chair and Guinean President Alpha Conde declaring it “does honour to Africa.” It is the first time in Africa, and the fourth worldwide, that the results of a presidential election have been overturned by the judiciary. This is particularly significant on the African continent where the judiciary is typically seen as a ‘rubber stamp’ for executive powers. With this ruling, the Kenyan judiciary has strongly affirmed its independent status, and there is hope that this will galvanise pro-democracy campaigners across Africa.
Meanwhile, Chief Justice David Maraga has been hailed a national hero for his commitment to democracy. In a country where ethnic tensions run high and divisions are exploited for political purposes, Maraga has now twice this year stood up for judicial independence, earlier having rebuked Kenyatta after he attempted to gain support in Maraga’s home area by telling people they should vote for him because he had given “their son” a job. Maraga responded that his appointment had nothing to do with the President.
There are, however, some concerns as to whether the decision will spark a renewed outbreak of violence. Kenya has a history of post-election violence, most notably in 2007 where over 1300 people were killed in riots that broke out. So far this election cycle, human rights groups have reported 28 deaths at the hands of police, and before the election, Chris Msando, a senior official in charge of the electronic voting system, was found murdered, his body showing evidence of torture.
Fortunately, both main candidates for the presidency have responded with calls to their supporters to respect the decision of the court and maintain peace, with Kenyatta declaring it “important to respect rule of law even if you disagree with the Supreme Court ruling.” The Court placed no blame on Kenyatta or his party, rather on the Independent Electoral and Boundaries Commission (IEBC).
Nevertheless, despite calls for peace, Kenyatta later called the judges involved in the decision “wakora” (crooks), stating “there is a problem with the judiciary, which must be fixed”. Should Kenyatta win again in the re-run of the election, the Kenyan people and international observers should watch carefully to ensure the work of the 2010 Constitution to restore trust in political institutions is not undone, otherwise, his apparent victory for democracy will be very temporary indeed. It is important that politicians work together to support democratic progress, and refrain from criticising institutions for the purposes of political gain.
Moreover, while faith may have been restored in the judiciary, trust in the IEBC will be difficult to regain. Odinga has called for all those responsible to be jailed and the commission replaced. Kenyatta, however, has argued that the commission should be retained and allowed to continue its work unhindered. Disputes about the commission’s composition may well lead to serious disputes over the re-election results. As senior risk analyst, Emma Gordon, has pointed out “the population’s lack of faith in the system is one of the reasons why politics often descends into violence.” The ruling is a great sign of democratic progress, but ethnic divisions still colour politics in Kenya and without agreement on the reliability of the electoral commission to deliver free and fair elections, tensions will be high in this re-election.