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Is judicial wrangling fuelling Kenya's election turmoil?

Is judicial wrangling fuelling Kenya's election turmoil?©©YASUYOSHI CHIBA / AFPA man throws stones toward a police station as he takes part in a demonstration on October 16, 2017 in Kisumu, to demand the removal of officials from Kenya's Independent Electoral and Boundaries Commission, allegedly implicated in manipulation of the votes tally during the last August 8 presidential elections.
2 min 45Approximate reading time

Kenya's annulled presidential elections have thrown the country into the worst political crisis since the 2008 post-election violence which saw over 1,000 people killed and hundreds of thousands displaced. Tension is high as the scheduled October 26 re-run approaches.

"Kenya has had a very tough year so far and the going looks as if it will get tougher," says Robert Shaw, a public policy and economic analyst in Nairobi. "The country is dangerously polarized and fatigued, which is a lethal cocktail. There is an increasing number of antagonistic and inflammatory comments by some leaders that risk taking us back to the dark and awful days of the 2007/2008 post-election violence." He says a lot of what has been achieved in the seven years since Kenya adopted a new Constitution now runs the risk of crashing down, and with it peace and social harmony. 

The Kenyan Constitution, enacted in 2010 to replace the one that had existed since independence from Britain in 1963, led to more independent powers for the judiciary, so as to stop manipulation by politicians and end a culture of impunity. The three courts of justice - Supreme Court, the Court of Appeal and High Court -- each have powers to arbitrate and rule on cases of national importance.

When the Supreme Court nullified the August 8 election results, it caused a profound sensation. Never before had a court ruled against the election of a president. While Uhuru Kenyatta accepted the ruling at first, he has increasingly been adamant that changes should be made to the Constitution to "protect the sovereign will of Kenyans, exercised through their elected representatives".

Kenyatta told parliamentarians on September 12 to "stand up for the Constitution", adding that "electoral contests are not mere competitions between two people but a sacred event where millions of Kenyans transfer their sovereign will to the leader of their choice." He was speaking at a parliamentary session boycotted by the main opposition movement NASA.

Moves to amend electoral law

And so the Kenyan parliament, dominated by Kenyatta's Jubilee party, moved with speed to make a crucial change to the electoral law to be used during the October 26 re-run. This has drawn sharp criticism not only from the opposition NASA but also some liberal MPs from the ruling party, who have warned that the changes would undermine Kenya's credibility and usurp the Supreme Court's powers to correct election mistakes.

"The best laws are not made during times of crisis," says Mithika Linturi, a Jubilee senator from Igembe South in Meru County. "The best laws would require, as per Article 10 of the Constitution, the participation of all people of goodwill, under a prevailing atmosphere of trust for each other. We believe we won this election, but if we make a law in the absence of the other party, we will be making a grave mistake. To make Kenya safe and secure, there is need for us to consult more, and build relationships towards passage of this particular law."

The political stalemate and inconsistent interpretations of the law are adding to the charged atmosphere and are likely to affect investor confidence, economists warn, affecting Kenya’s economy, the most dynamic in East Africa. 

When the Supreme Court annulled the August 8 vote won by President Uhuru Kenyatta on grounds of illegalities and irregularities and ordered a re-run, Kenya was hailed for setting democratic standards in the whole of the African continent. But a series of challenges have arisen which threaten to destroy this credibility.

The tense atmosphere ahead of the October 26 repeat vote has led to a fall-out between the two major political parties - the ruling Jubilee party of  Uhuru Kenyatta and the National Super Alliance (NASA) led by Raila Odinga. To the chagrin of the electorate, Odinga made a shock announcement just two weeks before the vote that he was pulling out of the contest because his repeat demands for changes to the voting process were not being met.

While maintaining that the poll will not take place, NASA initiated street demonstrations to force a shake-up of the Independent Electoral and Boundaries Commission (IEBC), including replacement of all the commissioners and changing the companies charged with printing the ballot papers 

Frequent demonstrations have rocked the capital Nairobi and parts of the Coastal and Western regions which are Odinga strongholds,  threatening to rekindle ethnic tensions amid renewed warnings that the country could descend into another round of violence.


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