Kenya’s election redo displays history, impunity at the ballot box

Within hours of the Kenyan Supreme Court nullifying the August 8 presidential election, incumbent president Uhuru Kenyatta was back on the campaign trail. In crowded streets in Nairobi’s, he rallied his supporters to be ready to vote again when fresh elections are organized within 60 days.

However, even as Kenyatta’s accepted the court ruling and called for peace and unity in public statements from the presidential podium, on the streets of the capital city his tone was more defiant. Dismissing the ruling to his supporters as rendered by judges paid by “foreigners,” he referred to Supreme Court Chief Justice David Maraga and “his people” as “wakora” or thugs in the Swahili vernacular.

By reminding voters he was still the president and making veiled accusations of foreign tampering, Kenyatta set the stage for the electoral battle ahead using proven political tactics from the past.

My primary message today to every single Kenyan is peace. Let us be people of peace. pic.twitter.com/GlD2agKgYJ

— Uhuru Kenyatta (@UKenyatta) September 1, 2017

The Court’s ruling has given me a chance to continue serving Kenyans as a sitting President and not as a President-elect. pic.twitter.com/qMKPSBE5oR

— Uhuru Kenyatta (@UKenyatta) September 1, 2017

Kenyatta’s shifting tone of presidential concession and defiance is a historic nod to the power of incumbency. No sitting president has every lost an election since Kenya gained independence in 1963. The last three incumbent presidential races (1992, 1997 and 2007) have all seen high levels of state sponsored political violence.

{mosads}This year’s election appears to break this violent trend so far as the Kenyan judiciary asserts itself as the final arbitrator of electoral disputes. The historic power of the presidency, political corruption, impunity and law and order will now define the contest for a hasty replay of an election which reportedly cost nearly a billion dollars to conduct less than a month ago.

The Sept. 1 Supreme Court ruling is unprecedented for Kenya and for Africa. It will reverberate throughout the continent as a positive sign of judicial independence and supremacy in arbitrating political disputes.

Incumbency is now in question, as Kenyans are widely celebrating the independence of the judiciary as much as they are supporting their preferred candidates. In a region where incumbents like Rwandan president Paul Kagame win 99 percent of the vote, the nullification of Kenyatta’s original 54 percent win is a welcome surprise to civil society organizations and activists who have long complained about Kenya’s historic culture of corruption and impunity.

Supporters of opposition candidate Raila Odinga have elevated Chief Justice Maraga and the Supreme Court as a hero for democracy. This is a stark change from their 2013 condemnation when the Supreme Court rejected Odinga’s presidential election petition. Kenyatta’s supporters were obviously disappointed with the results, but most kept their discontent measured and respected the courts independence until the president himself lashed out.

Since the ruling, Kenyatta and his Jubilee Party, launced a series of vicous attacks against the judiciary. Kenyatta called out the chief justice specifically Friday and warned, “I’ve always said we have a problem with our Judiciary. We shall respect but we will revisit this agenda” 

The decision by the court nullified the presidential election but also insulated key players from culpability. The ruling argued clearly the country’s Independent Electoral and Boundaries Commission (IEBC) “failed, neglected or refused to conduct the Presidential Election in a manner consistent with the dictates of the Constitution.”

Careful language also asserted that the court “found no evidence of misconduct on the part of the 3^rd Respondent” — Uhuru Kenyatta. More details are expected from the Supreme Court within three weeks, the next fight in the long campaign season will be about the legitimacy of the IEBC and its current officials to conduct a free and fair election.

Odinga and his supporters have called for prosecution of IEBC officials over alleged discrepancies between vote tallying at the constituency level and the digital transmission of results to Nairobi. In what Odinga and his supporters have claimed was a “computer generated leadership,” they now want the IEBC disbanded. Kenyatta has fired back in support of the electoral commission saying any “disbandment of the IEBC should start with disbandment of the Supreme Court.”

As the sons of Kenya’s first president and vice president square off again for their third electoral contest, it is important to keep the past and present at the forefront electoral analysis. Both Kenyatta and Odinga come from political dynasties. Odinga has campaigned on challenging Kenya’s long history of political impunity. From the politics of land grabbing to state-sponsored violence, his promise to combat corruption draws on his long history as a controversial and sometimes persecuted leader of the opposition. With calls for “mass action” often eminating from his political playbook, the 72 year old Odinga is now rejuvinated for another tough political fight.

The road to justice was never to be a smooth path, it would be faced with sacrifice, suffering and struggle. https://t.co/QNqD7nAgSl pic.twitter.com/2WhedFqEUH

— Raila Odinga (@RailaOdinga) September 3, 2017

Kenyatta is betting that voters will support his record on economic development and regional security, and favor his “forgive and forget” approach to dealing with the nation’s authoritarian past. The incumbent argued defiantly that “We are ready to go back again to the people with the same agenda — no change — the same agenda that we delivered…”

With the IEBC announcing today the rerun election will be held October 17^th, the next six weeks could signal an important and potentially volatile transition for democracy in East Africa. With more than 150,000 security personnel patrolling the country during the last election, complaints of extra-judicial violence and persecution of civil society organizations have been widespread. There have also been limits political protest in the name of maintaining “law and order.”

The stakes are high in Kenya’s historic presidential replay. With elections threatening stability in East Africa’s political and economic hub, the race for votes will now turn back to a contest between continuity and change.

For the international community, Kenya remains a historically important economic and strategic partner. However, with high profile observers like former U.S. Secretary of State John Kerry quickly backing the August 8 polls as relatively “free and fair,” diplomatic missions must tread carefully in their ongoing support for Kenya’s democratic process.

For the Trump administration, African affairs have been largely ignore and plagued by vacancies is key State Department positions. However with Kerry and others now being vilified as neocolonial meddlers or supporters of the incumbent regime, the U.S and other key partners must now focus their support on long term transparency and not be so quick to endorse an outcome in favor of short term stability. 

Matt Carotenuto is associate professor of History and Coordinator of African Studies at St. Lawrence University in Canton, New York. He is also chairman of the Board of Directors of Africa Network. His research focuses on Kenyan history and the politics of identity. At St. Lawrence he works closely with the University’s long-standing Kenya Semester Program. He is co-author of the book “Obama and Kenya: Contested Histories and the Politics of Belonging in Kenya.” His work on African affairs and study abroad has also been featured at the Brookings Institution and in The Huffington Post,Politico, Salon, Open Democracy, Africa is a Country,  and the Washington Post.