The six judges of the Kenyan Supreme Court who announced their ruling yesterday. A seven judge did not participate because he was ill.
Much to my surprise, yesterday the Kenya Supreme Court invalidated the election of Uhuru Kenyatta for a second term and ordered another election within 60 days. The court said that the Independent Electoral and Boundaries Commission (IEBC) had “failed, neglected and refused” to conduct the elections in accordance with the law, thereby declaring President Kenyatta’s re-election in the August 8 poll “invalid, null and void” due to irregularities committed by the IEBC. If one wants to criticize my skepticism that the polling results would not be overturned, note that this is the first time in sixty years since Ghana received independence in 1957 that a court in Africa has over-ruled the re-election of an incumbent president.
If you would like to read a long article on the problems with this election, see Helen Epstein’s Kenya: The Election and the Cover-Up in the New York Review of Books at http://www.nybooks.com/daily/2017/08/30/kenya-the-election-and-the-cover-up/.
NASA supporters of Raila Odinga celebrating the Supreme Court ruling mandating another election. As Gladys and I drove home after the announcement, in Lugari sub-county which is strongly pro-NASA, youth were calling out to us as we passed, “NASA, NASA.”
Another impressive aspect of the ruling was that two out of the six judges dissented from the ruling. In other words each judge assessed the evidence independently and came to his or her own conclusion. In the previous 2013 election all ruling by the court were unanimous which, to my mind, seems unlikely unless there was considerable pressure for conformity.
The IEBC was the main loser in this ruling. The decision was a massive indictment of the IEBC. The Court has declared that they will give the justification for their ruling within 21 days. Their ruling seems to have been based on massive irregularities in the voting, particularly, in the conveying of votes from the polling stations, to the 290 constituency tallying centers, and then to the central tallying center in Nairobi. The opposition had demanded access to many documents which was approved by the court, but the IEBC was slow to give these to them and in the end refused to give some of them as ordered by the court. This led the court to believe that IEBC wasn’t being transparent as any electoral body should be and therefore was hiding incriminating data from scrutiny.
Thabo Mbeki, John Kerry and Aminata Toure were all observers in last month’s election
The second big loser was the international observers who so quickly declared the election free and fair and then left the country. I have said over and over that an election is a long process and not just the voting day when people put their ballots into boxes. Former US Secretary of State John Kerry was the lead observer for the Carter Center. He praised the electoral commission for having done an “extraordinary job to ensure that Kenya has a free, fair and credible poll.” He urged the opposition to “get over it and move on” rather than contest the election results. His positive comments were used by the defense to support their case. This leads to the belief that the international observers were there only to support the status quo as the United States seems to have preferred Uhuru over Odinga. The role of international election observers needs to be re-assessed. Instead of leading to credibility they become additional part of the problem in elections.
The new election is now probably scheduled to occur on October 31. NASA has a major problem since the IEBC that has been discredited will again be in charge of the new election. What will keep the same “tricks” from happening again? Already NASA has announced that head IEBC officials need to be replaced. They have even announced that these officials should be prosecuted and jailed, a most unlikely scenario.
One positive result of this court case, regardless of how the October 31 election turns out, is that the IEBC and therefore other Kenyan governmental bodies have been put on notice that they can’t get by with doing shoddy work. They have to follow the law and produce. All governments, in my observation, move to autocracy and then dictatorship, unless there is citizen resistance. This has been an issue during Uhuru’s first term as president, but the court ruling will certainly give pause to this movement towards autocracy. The Kenyan courts have clearly declared their independence. Moreover their credibility which had been badly damaged during the 2013 election has been rehabilitated.
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From 1998 to 2016, David Zarembka was the Coordinator of the African Great Lakes Initiative of the Friends Peace Teams. He continues his peacemaking work in East Africa with Transforming Communities for Social Change (TCSC) and Friends Church Peace Team (FCPT). He has been involved with East and Central Africa since 1964 when he taught Rwandan refugees in Tanzania. David is married to Gladys Kamonya and lives in western Kenya. David is the author of A Peace of Africa: Reflections on Life in the Great Lakes Region.
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