Argument

Kenya Braces for a Disaster of an Election

Amid unprecedented uncertainty, this week’s rerun presidential vote could get very ugly.

Supporters of the Kenyan opposition National Super Alliance during a demonstration in Nairobi on Oct. 11. (Simon Maina/AFP/Getty Images)
Supporters of the Kenyan opposition National Super Alliance during a demonstration in Nairobi on Oct. 11. (Simon Maina/AFP/Getty Images)

NAIROBI — Three days before they are due to vote in a presidential rerun, Kenyans have no idea whether the main opposition leader will participate, who will be on the ballot besides the incumbent president, and whether the country’s independent election commission can guarantee a peaceful and credible election.

The unprecedented period of political and legal uncertainty comes after opposition leader Raila Odinga shocked observers by withdrawing from an election rerun that he himself demanded in court. In a historic Sept. 1 decision, the Supreme Court voided President Uhuru Kenyatta’s Aug. 8 re-election victory because of widespread illegalities, a move that was broadly hailed as a democratic milestone. But now, less than two months later, weighty questions about Kenya’s future are once again in the hands of robed justices as the country braces for the possibility of widespread protests on election day.

In boycotting the rerun, Odinga appears to be gambling that he can force a reset of the election clock, giving the country’s independent election commission more time to implement reforms the opposition leader claims are necessary for the contest to be free and fair. Even if he fails and the vote goes ahead, he will have succeeded in delegitimizing the process and leaving it open to future challenges in court.

According to his opposition NASA coalition, Odinga withdrew because the election commission rejected his demands for reform, including replacing election officers responsible for failing to transmit results electronically and in the correct format the last time around. “All indications are that the election scheduled for Oct. 26 will be worse than the previous one,” Odinga said at an Oct. 10 news conference.

With the election just days away, all parties are playing hardball. Odinga insists that he is out of the race until his demands are met and has called for massive protests on Thursday. (He has since told his followers to expect a big announcement on Wednesday in which he will reveal “how we will slay the cat.”) Kenyatta’s ruling Jubilee coalition, meanwhile, has sued Odinga over his boycott and hastily passed a series of bills in Parliament that it hopes will allow the electoral commission to declare Kenyatta the winner — even if the opposition leader refuses to participate. And his government has responded to near-daily opposition protests with force, triggering anxieties over ethnic profiling and potential escalation. Since Aug. 8, nearly 70 people have been killed in clashes with security forces.

For its part, the election commission looks divided and uncertain. It says it won’t honor Odinga’s withdrawal because he didn’t submit the proper paperwork, but its chairman, Wafula Chebukati, has voiced doubts about his ability to oversee a credible election. Another senior election official, Roselyn Akombe, fled to the United States last week after receiving anonymous threats. Meanwhile, Ezra Chiloba, the commission’s CEO, announced that he would take a three-week leave of absence, leaving the election body short three senior officials during the contentious vote (Praxedes Tororey, the director of legal affairs, retired in September).

There also are questions about the commission’s technical ability to pull off the vote on such a short timetable. After the Supreme Court annulled the previous election on Sept. 1, the commission claimed that it started the process of reconfiguring the 40,883 electronic information management kits deployed to polling stations around the country so that they only contain two names — Kenyatta and Odinga. (Eight candidates were on the ballot on Aug. 8.) But after a lower court ruled on Oct. 11 that Ekuru Aukot, a minor third-party candidate who sued to be included in the rerun, must be on the ballot as well, the commission shifted gears and said it would accommodate all eligible and interested candidates from the Aug. 8 election. Whether the kits can be reconfigured by Thursday, however, remains an open question. Also in question is the commission’s ability to administer polling stations in some opposition strongholds, where training for returning election officers was cancelled because of security concerns.

Odinga seems to be banking on an obscure legal provision to force an electoral reset. And until Oct. 11, the law was arguably on his side. The Supreme Court had previously ruled, in response to a petition following the 2013 election, that a rerun would feature only the petitioner and the winner of the invalidated election. Furthermore, it ruled that if either of those candidates withdrew from the race, all eligible parties would need to seek fresh nominations, effectively restarting the electoral calendar. But by allowing Aukot back on the ballot, the lower court departed from this reading (and the commission took it further and allowed all but one of the original candidates back into the rerun). This reading is being challenged by some of the election cases before the Supreme Court this week, and Odinga might still get his moment. But for now, the lower court ruling has blunted the impact of his political theater — averting the farce of Kenyatta running alone in a presidential election.

But Odinga’s biggest gamble was always with voters. Time and resources were already working against him with the Oct. 26 date; his war chest was allegedly empty, and he was struggling to reach voters through the Kenyan media, which is largely dependent on government advertising to keep the lights on. By hitting the brakes so dramatically, Odinga risks being portrayed as a spoiler who is responsible for Kenya’s current economic slowdown. Investors have been spooked by the political turmoil, and the International Monetary Fund recently lowered its growth projections for Kenya, although the country’s central bank has said it doubts the repeat election has affected the economy significantly. Some Kenyans may vote for Kenyatta just to make this uncertainty go away.

But not everyone votes their wallet. Many Kenyans see Odinga’s stubborn resolve as expanding the space for democratic participation in the country. Jubilee’s first term in office was characterized by a dramatic shrinking of the civil space, notably through punitive measures against civil society and the press. Following the annulled Aug. 8 vote, the administration has threatened to deregister four civil society organizations, and the president himself has threatened to “deal with” the court after the unfavorable decision. For many rights-oriented voters, Odinga’s candidacy represents their best hope of reining in Jubilee’s onslaught on key democratic institutions.

Ultimately, because the law is at a minimum unsettled, Odinga’s withdrawal leaves the election commission in a tough spot. The impulse to push ahead with an Oct. 26 date at all costs is strong, and the commission has already issued a slew of directives to that effect. But an election without the opposition leader on the ballot under these circumstances will cripple the authority of both the commission and the Jubilee administration in the long run, and it could potentially destabilize the country.

This reality may be gradually sinking in: The election commission seems increasingly reluctant to publicly defend an increasingly illegitimate and potentially illegal vote. A key commissioner fleeing into exile the week before the ballot does not bode well for the integrity of the process. Ironically, Kenyatta’s decision to sue Odinga to force him to participate may be the lifeline the commission needs — allowing the Supreme Court to further clarify the untested and partially contradictory tangle of laws that govern Kenyan elections. The question is: Will the commission take it?

Nanjala Nyabola is a writer and political analyst based in Nairobi, Kenya.

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