Dispatch

In Unprecedented Reversal, Kenya’s Top Court Throws Out Election Result

International observers were quick to endorse the results of last month's presidential election. Now they're facing uncomfortable questions.

Supporters of Kenya's opposition National Super Alliance (NASA) leader, Raila Odinga celebrate in the streets of Mathare slum in Nairobi on Sepetember 1, 2017. x
Kenya's Supreme Court ordered a new presidential election after annulling the results of last month's poll in a shock decision in favour of the opposition. Joyous celebrations erupted outside the court and in Nairobi slums after the second term victory of President Uhuru Kenyatta was declared "invalid, null and void".
 / AFP PHOTO / TONY KARUMBA        (Photo credit should read TONY KARUMBA/AFP/Getty Images)
Supporters of Kenya's opposition National Super Alliance (NASA) leader, Raila Odinga celebrate in the streets of Mathare slum in Nairobi on Sepetember 1, 2017. x Kenya's Supreme Court ordered a new presidential election after annulling the results of last month's poll in a shock decision in favour of the opposition. Joyous celebrations erupted outside the court and in Nairobi slums after the second term victory of President Uhuru Kenyatta was declared "invalid, null and void". / AFP PHOTO / TONY KARUMBA (Photo credit should read TONY KARUMBA/AFP/Getty Images)

NAIROBI — In a historic decision on Friday, Kenya’s Supreme Court voided President Uhuru Kenyatta’s reelection last month and ordered a second vote to be held within the next 60 days.

The judges ruled 4-2 in favor of a challenge by veteran opposition leader Raila Odinga, who claimed the country’s electronic voting system had been hacked and the results tampered with after he was declared the loser.

In announcing the verdict, Judge David Maraga called Kenyatta’s victory “invalid, null, and void,” adding that the electoral commission had “neglected or refused to conduct the presidential election in a manner consistent with the dictates of the constitution.”

More than 15 million Kenyans voted on Aug. 8, with Kenyatta winning 54 percent of the vote, according to the now-voided official tally.

“It’s a very historic day for the people of Kenya and by extension the people of Africa,” Odinga said of the ruling. “For the first time in history of African democratization a ruling has been made by a court nullifying irregular elections for the president.” Kenyatta’s lawyers called the ruling a “very political decision” but pledged to abide by it, the Associated Press reported.

International observers, more than 400 of whom were on the ground for the Aug. 8 election, had signaled their acceptance of the result, despite the murder of a top election official just days before the vote and a breakdown in the tallying system that saw some of the results reported via text message.

Even before the ballot had taken place, former Secretary of State John Kerry, who led the Carter Center’s observer mission, congratulated the electoral commission on the “extraordinary job” it did “to ensure that Kenya has a free, fair and credible poll.” Then after Odinga had challenged the result, he acknowledged “minor variances here and there,” but dismissed them as nothing that “we thus far feel affected the overall integrity of the process.”

“They are going to have to wipe a huge amount of egg off their faces,” John Githongo, an anti-corruption campaigner and former head of Kenya’s anti-corruption commission, said of the international observer missions. “People here are really feeling very hurt and cheated by the international observers. They did a very sloppy job. There’s a feeling that these guys came on holiday here and signed off on something that they should not have.”

In a statement released Friday, the Carter Center pushed back against the idea that it had fully endorsed the vote.

“Following the elections, the co-leaders of the Center’s mission, former U.S. Secretary of State John Kerry and former Prime Minister of Senegal Aminata Touré, publicly discussed concerns about the transmission of results and encouraged all stakeholders to cross-check results during the tallying process and to use established legal processes to address any concerns, and refrain from violence,” the statement read in part, adding that in its initial statements about the vote the center had “stressed that the electoral process was not yet complete and that an overall assessment could not be given until its conclusion, including the resolution of any electoral petitions.”

In its petition to the Supreme Court, Odinga’s opposition National Super Alliance (NASA) alleged that close to half of the ballots had been tampered with. Paper forms that were supposed to match the electronic tallies were transmitted late or not at all, and court officials said some of them lacked official seals or had other irregularities.

The surprise Supreme Court decision has thrown the East African country into a period of intense uncertainty, prompting authorities to suspend trading on the Nairobi Securities Exchange for half an hour on Friday even as spontaneous celebrations erupted in opposition strongholds in the capital, along the coast, and in the western city of Kisumu. At least 28 people have been killed in protests and clashes with the police since Odinga claimed the election was hacked and rejected the results.

The ruling sets the stage for a rematch between Kenyatta, the mild-mannered son of Kenya’s first post-independence president, and Odinga, a populist who has run for president unsuccessfully twice before. In 2007, Odinga called for protests after President Mwai Kibaki was declared the winner, touching off weeks of ethnic violence that claimed more than 1,000 lives and displaced roughly 600,000 people. In 2013, he lost to Kenyatta but alleged fraud, arguing his case unsuccessfully in court.

The Supreme Court judges did not fault Kenyatta’s government in their ruling on Friday, instead singling out the independent electoral commission for gross malpractice. Analysts say that could lead to a contentious battle over whether the electoral commission should be allowed to oversee the revote.

“If the opposition demands that electoral commission is disbanded, and the government rejects that, there could be a possibility of confrontation,” said Murithi Mutiga, a Kenya analyst at the International Crisis Group. “Both the government and the opposition really need to show some restraint, because it’s a decision that most people didn’t expect, and this is uncharted territory. This has never happened before in Africa.”

Editor’s note: This post has been updated. 

Image credit: TONY KARUMBA/AFP/Getty Images

Ty McCormick is the Africa editor at Foreign Policy. @TyMcCormick

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