Kenya’s long-running political drama is sinking deeper into crisis, testing the outermost limits of the country’s election laws. Its highest court seemed at first to have struck a rare victory for judicial independence with its declaration that August’s presidential election, which gave a second term to President Uhuru Kenyatta, was “invalid, null and void,” necessitating a rerun. But as the weeks have passed, the Supreme Court ruling looks more like a mixed blessing that guaranteed a prolonged political morass.
The new vote was supposed to take place before the end of October, but very few of the underlying problems identified by the court have been resolved, while negotiations between the rival candidates have gone mostly nowhere. The repeat poll would be “much, much less credible” than the original, predicts Joshua Kivuva, a political scientist at the University of Nairobi. “Anybody who imagines that [the electoral commission] can conduct better elections—given less time, given the more conflicting political environment, given the fact that there is fatigue in the country—must be out of his mind.” In all likelihood, the country has appeared to be heading toward a second flawed election in three months.
And that was before opposition leader Raila Odinga backed out of the vote earlier this week, following through on his threats. The Independent Electoral and Boundaries Commission, or IEBC, remained irredeemably broken, he claimed, and had shown no intention of responding to the demands of his coalition, the National Super Alliance, known as NASA. Nor, he insisted, had the ruling Jubilee Party shown a commitment to act in good faith with the new poll. “All indications are that the election scheduled for 26 October will be worse than the previous one,” Odinga said on Tuesday.
His decision seems to have been at least partly timed to pre-empt efforts by Jubilee lawmakers in parliament to speed through electoral reforms that will benefit Kenyatta. The day after Odinga’s withdrawal, parliament passed a measure ensuring that if a presidential candidate withdraws from a repeat election, the one remaining would automatically win.
What comes next is anybody’s guess. Electoral lawyers are navigating entirely new terrain, and doing it under a tight deadline.
The IEBC said late Wednesday that the Oct. 26 vote will go ahead as planned, with a ballot including Odinga, Kenyatta and six other minor candidates. Despite the opposition leader’s announcement, Odinga has yet to file the official paperwork to be withdrawn from the election, the board noted. “Once the commission receives the requisite notice from any of the candidates, it will process the same in accordance with the requisite provision of the law,” it claimed.
If the election takes place, it’s unclear exactly what form Odinga’s boycott will take. He might encourage supporters to abstain or, more dramatically, actively prevent people from voting, which could spark violence. In either case, continuing with this month’s ballot would guarantee that fundamental questions about Kenyatta’s legitimacy persist, while casting a shadow over what would be his second term.
Kenyan electoral lawyers are navigating entirely new terrain under a tight deadline.
However, Odinga’s withdrawal seemed designed not to concede the election, but to delay it and start over from scratch. “Our withdrawal from the election requires the IEBC to cancel the election and to conduct fresh nominations,” Odinga said in his Tuesday statement. The Supreme Court seemed to suggest as much in a 2013 ruling, in which it ordered that, in a similar situation, candidates must be re-nominated and prepare for a new national election to be held in three months. Kenyan election law, Odinga claimed this week, “gives adequate time to undertake the reforms necessary to conduct an election that is in strict conformity with the constitution.”
There’s also a chance that Odinga’s boycott could be declared invalid, coming as it did just two weeks before the new election day. Under electoral regulations, candidates have only three days after they enter a race to withdraw for it to be valid.
Barring the creation of an interim caretaker government, which seems highly unlikely, Kenyatta will remain in power for at least the next few months. Odinga is encouraging his supporters to continue regular demonstrations in opposition to the electoral system. So far, thousands of them have taken to the streets in Nairobi and Odinga’s western hometown of Kisumu.
Ultimately, it’s up to the courts again to decide what happens next—and to build upon their bona fides as an independent check on the government. But the Supreme Court has become increasingly politicized in the wake of its decision to scrap the August election. In the days after its September ruling, Kenyatta called the decision a “coup” and promised to “fix the judiciary” and “teach them a lesson” after the new election, suggesting a worrying disregard for the rule of law.
If the electoral system looks unprepared for what comes next, so do the police. Authorities carried out a limited but nonetheless brutal crackdown on protesters following the August election, especially in opposition strongholds. At least 37 people were killed, according to the Kenya National Commission on Human Rights, including a 6-month old baby. There has been little indication that security forces will operate with any more restraint going forward, as the police seem unable to prevent unrest without resorting to violence. Recent student protests at the University of Nairobi triggered a rampage by police in which 27 students were injured.
In the background, all the while, is a sluggish economy that has been compounded by a prolonged drought. Kenya is a key ally of the United States and the European Union and a regional financial powerhouse. But economic activity slowed ahead of the August election, as businesses feared possible violence, and has failed to recover amid the extended political uncertainty. Foreign direct investment, or FDI, which Kenya relies on, has essentially been suspended amid the ongoing turmoil.
“It’s quite obvious that international investors are holding on any key decisions regarding inward FDI inflows into Kenya until there is a new political certainty,” says Robert Besseling, the executive director of Exx Africa, a South Africa-based risk advisory firm. “No one can make high-level important investment or trade decisions at the moment in Kenya. So everything is stuck in waiting mode until this electioneering, campaigning, political phase is over.”
The peculiarities of this electoral cycle could reverberate for the next generation of political leaders. After several failed attempts at the top job, Odinga had promised that this would be his last stand as a presidential candidate. If Kenyatta remains in power, term limits prevent him from running again in 2022. One way or the other, Kenya will likely undergo a wholesale remaking of its political landscape over the next five years, which only becomes more difficult if the divisions become more entrenched.
Still, optimistic analysts characterize the current troubles as the growing pains of a maturing democracy. “It’s a test of our institutions,” says Barrack Muluka, a researcher and pundit based in Kenya. “It is a critical moment when the country will either make a break with the past or go back to the past.” For years, Kenya’s political system has been built around ethnic division, and voters have lived under the shadow of the contested 2007 elections, which set off a fit of violence that left 1,000 people dead and 500,000 displaced.
Consolidating and clarifying the country’s electoral laws might be just the ticket to move past the current troubles. But that is anything but assured. In the meantime, Kenyans will be saddled with confusion and a crisis that never seems to end.
Julian Hattem is a journalist based in Kampala, Uganda. You can follow him on Twitter at @jmhattem.