On 8 August 2017, Uhuru Kenyatta was re-elected President of Kenya, defeating veteran opposition leader Raila Odinga. Immediately after the election, opposition allegations of vote-rigging led to some violent clashes between police and opposition supporters, predominantly in impoverished districts of Nairobi.  

For the second presidential election running, Odinga formally challenged the result in the courts, arguing that there were irregularities in the transmission of votes from polling stations to tallying centres. On 1 September, the Supreme Court confounded many people’s expectations by voting 4-2 in favour of upholding his challenge. Chief Justice David Maraga announced that the election “was not conducted within the dictates of the constitution.” The Court declared that a new election must be held within 60 days, and it was later set for 17 October 2017. The Court is due to publish its detailed ruling by 22 September.  

Uhuru Kenyatta has said that he disagrees with the Court’s verdict but has grudgingly accepted it, but there are concerns about his intentions towards the judiciary if wins next month. Amidst heightened political tensions, the threat of renewed violence lurks in the background. 

These events have also caused some embarrassment for foreign observer missions whose interim reports had broadly concluded, albeit with caveats, that the election had been free and fair.

The case against the August election

Opposition allegations of suspected poll-rigging surfaced before the August election, following the murder and apparent torture of Chris Msando on 31 July, the man responsible for the electronic system used to tally the votes.  

Three days after the election, Wafula Chebukati, the chairman of the Independent Electoral and Boundaries Commission (IEBC), acknowledged that a hacking attempt on the servers had been made but said that it had failed.  

Odinga’s petition to the Supreme Court centered on claims that the results were transmitted to national counting centers ahead of the results declaration forms, and that a number of results forms went missing. 

The Supreme Court announced in its ruling that the IEBC had committed “irregularities and illegalities” in its transmission of the election results (though not in the counting of votes, as the IEBC was at pains to make clear). 

These findings were not reflected in the statements of various international observer missions, including the African Union, the EU Election Observation Mission, and the Carter Center. The “election observation industry” was criticised by a prominent Kenyan human rights activist earlier this year for focussing too heavily on the voting process and paying too little attention to the processes of counting and tallying.  

A peaceful second election? 

At least twenty-four people died in clashes between opposition supporters and the security forces in the first few days after the August election. There has been a fragile calm on the streets since then.  In comparative terms, the level of violence so far has been significantly lower than after the 2007 (1200 deaths) and 2013 elections (300).  

Many agree that it’s vital that Kenyatta, Odinga and their supporters avoid inflammatory rhetoric if levels of violence are to remain low through to the 17 October re-run and beyond. However, Kenyatta has already described of the judges who annulled the August election as “crooks” and said that there’s a need to “fix” the judiciary. Two politicians, one from each camp, have been arrested for alleged hate speech over the last week. 

The key to a peaceful second election will be the extent to which the IEBC can establish the credibility of the electoral process. Odinga and his allies have set out 25 demands, including for an audit of the election technology, full access to the servers, and the appointment of 290 new constituency returning officers. He’s threatened to boycott the 17 October election if these demands are not met.   

Wafula Chebukati has already replaced key staff within the Commission and altered reporting arrangements, but there’s a real risk that the Commission may be paralysed by internal factionalism. Plenty needs to be done to secure all elements of the counting and tallying system this time around. 

Once the current electoral saga is over, the IEBC appointments process will need to be addressed more thoroughly. It has long been a point of contention for Odinga. The newly-appointed staff are only on three month contracts. 

The sooner the Supreme Court releases its full ruling the better. If it includes findings that haven’t been fully anticipated, there’ll only be about a month to address them. But even then the Court’s role may be far from over. There is a distinct possibility that the loser of the October election may challenge that result too. 

Domestic and foreign election observers also face major challenges. While domestic observers from the Kenyan Election Observation Group adopted a sophisticated approach in August, including the deployment of stationary observers to a representative sample of polling stations and the use of parallel voting tabulation techniques, crucially it didn’t observe the transmission processes. It’s not yet clear how far it will do so in October. The same is true for the foreign observer missions. 

What are the wider implications? 

For many analysts, the Supreme Court’s ruling was a momentous demonstration of the increased independence of Kenya’s judiciary and a victory for democracy in Africa. Certainly, it’s unprecedented for the region. But triumphalism is premature. If the re-run is credible and fair and levels of violence remain low, then the celebrations can begin. But these are still big ‘if’s’. Africa Confidential sums up the situation well: 

“If managed well, the holding of fresh elections under greater scrutiny should add hugely to their credibility, further strengthening the institutions involved, encouraging judges elsewhere to stand up to the executive. 

But if the elections are held on an unrealistic timetable without consulting the widest range of politicians and activists, celebrants of the Supreme Court judgement could be cruelly disappointed and judges could quickly lose popular confidence.”

Photo credit: : Citizens queuing at the polls to vote on election day at Junju Primary School in Kilifi County, Kenya on March 4, 2013 by USAID U.S. Agency for International DevelopmentCreative Commons Attribution 2.0 Generic (CC by 2.0)