On the Kenyan repeat election: Boycotts and fresh trouble

Kenyans turned out in huge numbers on August 8, 2017 to choose their new leader. The official outcome of the presidential election showed that the incumbent, President Uhuru Kenyatta, had won with 54 percent against opposition leader Raila Odinga’s 44 percent. Prior to the announcement of the election results, senior officials of Odinga’s National Super Alliance coalition (NASA) challenged the results over allegations that the Independent Electoral and Boundaries Commission (IEBC) system had been hacked.

This was due in part to the fact that a week before the election, the IEBC’s top IT manager, Chris Msando, had been found brutally murdered, with a missing hand. The IEBC, however, rubbished these allegations, with the French digital company in charge of IEBC’s servers dismissing the hacking claims.

Used for academic purpose. Supporters of Raila Odinga set up burning barricades in Nairobi’s Kibera slum. Photograph: Dai Kurokawa/EPA

This was supported, post-voting, by an announcement by a joint announcement by international observers, including the European Union and the African Union, who commended IEBC for following the law and process as required when conducting the elections. However, local observers such as the Kenya Human Rights Commission reported that while the IEBC conducted the elections in a relatively smooth manner, there were discrepancies between provisional results and paper forms signed at polling stations.

The NASA coalition led by Odinga filed a petition in court to challenge the results of the presidential election, citing numerous irregularities. The Supreme Court’s majority decision to annul Kenyatta’s victory was one of the “most startling in recent – perhaps world – history”. Odinga questioned Kenyatta’s constant lead during the vote tally, stating that some of the forms supposed to validate the results had not been rubber stamped or lacked the signatures of returning officers and candidates’ agents as required by the law. We examine the origin of Kenya’s current political standoff and what happens next?

Tracing the origin of the standoff: Irreducible minimums and impeachment talk.

 There is now an entrenched standoff between Kenyatta’s Jubilee and Odinga’s NASA. Arguing that since the court had declared the re-election of Kenyatta null and void due to irregularities, Odinga’s NASA presented a list of “irreducible minimums” that the IEBC must adhere to before NASA participated in the repeat election. Odinga demanded reforms in nine areas, notably in the staffing of the IEBC, election technology, printing of ballot papers and logistics.

Kenyatta, on the other hand, despite stating that he respected the court’s decision to overturn his victory, issued persistent threats against the judiciary, including a vow to “fix the judiciary”. The Law Society of Kenya in a press statement warned Kenyatta against issuing threats to the Chief Justice and other judges. At a State House meeting with leaders of the Kamba ethnic group, Kenyatta threatened to impeach Odinga if he were to win the presidency, citing the ruling party’s numerical strength in the national assembly. This impeachment talk has also been re-echoed by some Jubilee legislators.

The IEBC, in trying to lessen the tension between Jubilee and NASA, set up meetings to forge an agreement. But those meetings hit a gridlock when both parties could not relent on their irreducible minimums. In response to this gridlock, NASA urged its supporters to engage in picketing and demonstrations. Jubilee, on the other hand, engaged its members in parliament to consider amending the electoral laws so that if one party did not participate in the election re-run or any upcoming elections, then the only remaining candidate would be declared the president.

Understandably, it is a multiplicity of factors that has led to the current standoff in a region where elections and constitutional crises often fuel instability.

Odinga’s withdrawal from the polls and what’s left of the journey to Canaan.  

Throughout the campaign trail all the way to petitioning court challenging Kenyatta’s victory, Odinga promised to lead his followers to Canaan. However, the announcement of his withdrawal from the repeat election scheduled for October 26, 2017 came as a surprise to some. What’s Odinga’s game plan, many wonder? Odinga cited the IEBC’s unwillingness to undertake any measures to ensure that his grievances and concerns were addressed before the next elections. NASA stated that participating in a repeat election while none of the demands for reform had been implemented would lead to the same outcome.

With the High Court clearing the IEBC to conduct the repeat presidential poll and Kenyatta insisting that the October poll will proceed as planned, the stage is now set for a confrontation, probably on the streets of Nairobi and other opposition strongholds, between Odinga’s supporters and the coercive elements of the state.

Kenyatta’s Jubilee had earlier  responded to Odinga’s withdrawal by saying that it was his democratic right to withdraw from the race but that the repeat election would go on as scheduled. Jubilee also suggested that Kenyatta is ready to sign the controversial reforms to the Election Act of 2011 should lawmakers pass the reforms. The Elections Amendment bill was passed by jubilee MPS and awaits presidential assent.

NASA’s decision to withdraw from the repeat election has led to a legal crisis as Kenyans continuously speculate the way forward. Legal experts are interpreting the relevant laws differently. There are varying legal interpretations because different experts, often with different political views, will cite the convenient law.

In the latest twist of what is left of the journey to Canaan, Raila Odinga announced on election eve that NASA leadership was transforming the coalition into a National Resistance Movement that would push for reforms through acts of defiance. Whether civil disobedience will lead NASA supporters to the promised land remains to be seen.

Kenya’s political atmosphere is again unpredictable, and as an economic powerhouse in the region, neighbors will be watching closely. Kenya’s all share index dropped 1.24 percent following Odinga’s withdrawal from the repeat election. Already, travel advisories due the threat of insecurity are hitting the economy, with key sectors like tourism especially hurt. In neighboring Uganda, Kampala City Traders Association (KACITA) warned Ugandan traders to halt transportation of goods through the Mombasa route till the election fever was over. Some Ugandan traders have never been compensated following the losses they suffered following the 2007/08 election violence.

A troubled election management body, court petitions & repeated calls for calm.

The recent resignation of IEBC commissioner Roselyn Akombe on claims that the electoral body (IEBC) cannot conduct credible elections, and the IEBC Chief Executive- Ezra Chiloba taking a three weeks leave further illustrates the murky situation Kenya is in. This week, Uhuru Kenyatta traversed parts of Nairobi for a last minute appeal to undecided voters, as his nemesis – Raila Odinga maintained his ‘No reform no election’ stand. As NASA announced fresh anti-IEBC protests, Kenyan police rushed to beef up security in NASA strongholds by seeking the assistance of sister security agencies – Kenya Wildlife Service, National Youth Service and Prisons. For a country and region that is not strange to election-related standoffs, it remains to be seen what happens in the coming days.

The European Union Election Observer Mission last week called for dialogue and cooperation to reach a compromise. Pope Francis recently made an appeal for ‘constructive dialogue’, adding that he was closely following the Kenyan situation. In a press briefing by foreign envoys early this week, US ambassador to Kenya Robert Godec cautioned IEBC on the danger of making ‘quick fixes’ and called for a credible election process. Just over the weekend, United Nations Secretary General and the Chair of the African Union Commission called for peace and police restraint ahead of the repeat poll. The Intergovernmental Authority for Development (IGAD) urged all actors to desist from practices that would lead to ‘undemocratic change of government’ and a crisis.

Multiple court cases have been a major attribute of the repeat presidential elections. These court cases, among others include one that sought the formation of a caretaker government, and another that wanted court to compel NASA candidate Raila Odinga to re-join the presidential contest. In the latest twist of legal gymnastics, a petition was filed in the Supreme Court just two days to voting. The petitioners sought to halt the conduct of the October 26 repeat poll. This court hearing failed to kickoff, Chief Justice David Maraga citing the lack of quorum. With only two justices present; David Maraga and Isaac Lenaola, the Supreme Court failed to raise quorum as required under article 163(2) of the constitution.

In his explanation, the Chief Justice fell short of convincing Kenyans. As it emerged, the deputy Chief Justice was not in position to make it to court following the shooting of her bodyguard. One justice was sick and out of the country for treatment, another failed to get a flight back to Nairobi for the hearing and two others were unable to make it. With all this clearly known, why then did the Chief Justice summon his team, on a public holiday, knowing well the state of his fellow judges? Clearly, there has been more uncertainty than answers in Kenya recently. The European Union Election Observation Mission, in a statement, regretted the failure by Supreme Court to hear the petition on whether or not to delay the October 26 election.

With the repeat election taking place as planned, will NASA rally enough of its supporters to influence the poll outcome? So far, it seems that there has been a tepid response from NASA supporters as opposed to the thousands, or maybe tens of thousands, that Odinga might hope for if his movement is to get the attention of Jubilee. Beyond stalling for a credible election, however, it is not entirely clear what Odinga wants. Neither is it clear whether Kenyatta can be magnanimous enough to enter some kind of “peace talks” with Odinga. Because now, as in 2007, it looks like only a coalition government can lift Kenya out of the abyss of perpetual electioneering into which it has fallen. Kenya could be sitting on a time bomb, and what happens next depends on the steps, for better or worse, that Kenyatta and Odinga take to heal what is a deeply divided nation.

Ivan Ashaba & Lilian Achieng

Ivan Ashaba & Lilian Achieng

Contributors at InPRA
Ivan Ashaba is a PhD candidate at the Institute of Development Policy, University of Antwerp. Follow him on Twitter @asha_ivan

Lilian Achieng is a human rights lawyer based in Nairobi, Kenya with interest in governance and conflict resolution.
Ivan Ashaba & Lilian Achieng

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