Dispatch

Kenya Is Barreling Toward an ‘Illegal’ Election

Kenya’s election crisis deepened after its Supreme Court punted on a decision to delay Thursday’s troubled rerun election.

Opposition supporters rally for presidential candidate Raila Odinga in Nairobi's Uhuru Park on Oct. 25. (Andrew Renneisen/Getty Images)
Opposition supporters rally for presidential candidate Raila Odinga in Nairobi's Uhuru Park on Oct. 25. (Andrew Renneisen/Getty Images)

NAIROBI — A day after the bodyguard of Kenya’s deputy chief justice was shot and seriously injured by unknown assailants, the Supreme Court failed to raise a quorum to rule on a petition to delay the country’s fraught presidential rerun, paving the way for elections on Thursday even as the main opposition leader calls for a boycott and top election commissioners say they cannot guarantee a credible vote.

Just two of seven justices were present Wednesday at the Supreme Court, which previously nullified incumbent President Uhuru Kenyatta’s Aug. 8 re-election victory and ordered Thursday’s revote. Kenyatta pledged to abide by that decision but derided the justices as wakora — or “crooks” — and threatened to “fix” the court. Chief Justice David Maraga did not speculate as to whether his colleagues’ absence was due to intimidation, saying only that they were “out of town,” “ill,” or “indisposed.”

Opposition leader Raila Odinga responded to the court’s indecision by urging his supporters not to participate “in any way in the sham election” and pledging to transform his NASA coalition into a “resistance movement.” At a rally with thousands of his orange-clad supporters here in the capital of Nairobi, he said, “We will not respect a government that was not elected according to the constitution.”

Kenyatta had pushed for the vote to go ahead as scheduled, and his ruling Jubilee coalition unsuccessfully sued Odinga to force him to participate. “The NO elections campaign by Raila Odinga amounts to nothing,” Kenyatta’s campaign said in a statement Wednesday. “We appeal to the rest of peace loving Kenyans to turn up in large numbers and vote and put to shame the NASA scheme to subvert our constitution for many months.”

In the nearly two months since the court voided the previous election, tensions have mounted over how to reform the country’s independent election commission, which the court deemed responsible for multiple “irregularities” and “illegalities” on Aug. 8. Odinga made a host of nonnegotiable demands and then withdrew from the court-ordered rerun when he was rebuffed. Less than 24 hours before voting was due to begin, huge questions loomed over the process, including who would be on the ballot and whether the increasingly embattled commission would be able to administer the vote.

The Supreme Court’s unwillingness to resolve those questions sends a chilling message about the limits of judicial independence in one of East Africa’s most stable and prosperous democracies. Less than two months after they defied the executive branch in what many hailed as a democratic milestone in Africa, all but two of Kenya’s Supreme Court justices declined to rule on perhaps the most consequential petition in years.

“When judges have taken office and vowed to keep the constitution, and then they don’t show up, that is a big statement,” said Maina Kiai, a Kenyan lawyer and rights activist who previously served as the U.N. special rapporteur on the rights to freedom of peaceful assembly and association. “It worries us because the judiciary was the last bastion of independence. If they are going to be buckling under pressure and be intimidated, then we are going to be in for a very rough ride.”

Thursday’s vote is set to proceed even after the election commission suffered a series of debilitating blows last week. Roselyn Akombe, one of the body’s top officials, resigned and fled into exile in the United States, saying the commission was paralyzed by partisan bickering and its members feared for their lives. Then the commission’s chief, Wafula Chebukati, warned that political leaders on both sides had become the “greatest threat to the peace and stability of the nation” and that he could not “truly be confident” that there would be a credible vote.

A week before the Aug. 8 election, the official in charge of the country’s digital voting system was brutally murdered. His case remains unsolved.

Near-daily opposition protests against the election commission have contributed to the prevailing sense of uncertainty. Supporters of Odinga’s NASA coalition have clashed repeatedly with security forces, and nearly 70 people have been killed since the original election took place on Aug. 8. Odinga had initially called for the “mother of all protests” on election day, but in his remarks Wednesday he urged his followers not to stage street demonstrations as part of the boycott. “We are aware that the bloodthirsty regime is using every chance to massacre our people,” he said.

“A lot of people were looking at Kenya worrying about a repeat of 2007-2008,” said Yolande Bouka, a postdoctoral fellow at the University of Denver whose research focuses on Kenya, referring to the interethnic violence that claimed more than 1,000 lives after the disputed 2007 poll. “But most of the deaths this time around have been at the hands of security forces. That was where the focus should have been.”

The ethnic rivalries that fueled the last bout of post-election violence still simmer just beneath the surface. Politicians on both sides have been jailed for incitement during this election cycle, and the legions of devoted Kenyatta and Odinga supporters — who vote overwhelmingly along ethnic lines — have been primed for a street fight.

“We have radicalization of both bases — of Jubilee and Raila’s base — that should trouble us,” said Marilyn Muthoni Kamuru, a Kenyan lawyer and political consultant. “The means of radicalization is different, but the effect of the radicalization is the same: that neither side is going to be willing to accept even legitimate defeat.”

Concerns over the deteriorating security situation prompted some international observers, who faced withering criticism for appearing to endorse the previous poll despite widespread irregularities, to scale down their operations on the eve of the planned election rerun.

“We have assessed the safety of our observers considering the extreme tension, disruptions of polling preparations, and strong criticism that has been made of the international community,” the EU Election Observation Mission said in a statement announcing a reduction in the poll observers. “Based on this, we have had to reconsider the extent to which we can observe across the country.”

The U.S.-based Carter Center, whose observer mission for the last election was led by former U.S. Secretary of State John Kerry, has also elected not to deploy a full observer team.

The rivalry between the Kenyatta and Odinga families dates back to the early years after independence, when Odinga’s father, Jaramogi Oginga Odinga, served as vice president in the administration of Kenyatta’s father, Jomo Kenyatta. In 1966, the two fell out, and Odinga founded an opposition party. His son has run unsuccessfully for president four times, twice against the younger Kenyatta. The intransigence of both men — and their inability to reach a political compromise ahead of Thursday’s vote — has reinforced the impression that they have taken the country hostage as part of a family feud.

Details are still emerging about what kept the Supreme Court justices from their chambers on Wednesday, but an attack Tuesday night on Deputy Chief Justice Philomena Mwilu’s bodyguard set an ominous tone. The bodyguard had reportedly pulled Mwilu’s official car off to the side of the road to buy potted plants for the justice when he was shot and had his pistol stolen by unknown gunmen.

Analysts said regardless of what happens Thursday, the parties would likely wind up back in court. In another ruling on Wednesday, a high court judge said the process for appointing some election agents had been illegal, likely setting the stage for future legal challenges.

“We are going into an election where already there is illegality, so you are wondering, ‘Why are we spending all this money on something that is illegal?’” Kiai said. Now, after the Supreme Court punted on Wednesday’s decision, “the question is whether the judges will even sit for that.”

The worry that the recent politicization of the courts could erode their independence — or lead to a deliberate clipping of the judiciary’s wings — was one shared by multiple analysts. Already, Kenyatta’s ruling Jubilee coalition has introduced legislation in Parliament that would tie the hands of the courts when hearing future electoral challenges. Jubilee denies that it aims to weaken the independence of the courts, but some worry that more draconian measures to tame the judiciary could follow if Kenyatta wins Thursday.

“If we anticipate that Kenyatta will win, what does he have in mind in terms of changing the legal framework of the country to facilitate his ruling of the government in a way that he sees fit, with a judiciary that is complicit?” Bouka said. “It’s beyond retribution for the judiciary.… I don’t want to predict doom, but what I see is what almost looks like an attempt to return to de facto single-party rule.”

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

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