A Constitutional Crisis Looms in Kenya

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By Eli Scott

After the Kenyan Supreme Court nullified the August 8 presidential election due to “illegalities” and “irregularities” in the polling process, Kenya was hailed by the international community as the model for upholding the rule of law, as its judiciary was the first to uphold an oppositional court challenge against a presidential election in modern African history. The Court’s seemingly straightforward ruling on September 1 invalidated the election and required that another presidential election be held in 60 days, and the election date was subsequently set for October 26. In the six weeks that have followed the decision, legal and political battles have embroiled Kenyan society, and the recent withdrawal of opposition leader Raila Odinga has deeply divided Kenyans on the constitutional crisis that currently faces the country.

The 2017 general election marks only the sixth election since the end of one-party rule in Kenya, and elections have been marred by tribal violence in 1992, 1997, and 2007. In 2007, current opposition leader Odinga challenged incumbent Mwai Kibaki and incited violence among his supporters, and the resulting post-election violence accounted for over 1300 deaths and displaced over 600,000 Kenyans from their homes. The 2007 post-election violence stemmed from the overwhelming disparities in pre-election polls that showed a significant Odinga advantage and the election results, in which Kibaki was elected by 250,000 votes. Low public confidence in the Independent Electoral and Boundaries Commission (IEBC) and tribal tensions marked the 2007 election, and the specters of the past seem to be plaguing the current election cycle.

On October 10, Odinga announced that he was withdrawing from the October 26 election, much to the surprise of both his critics and supporters. Odinga claimed that because the IEBC had failed to implement any necessary reforms since the August 8 election, the October 26 election process would be “worse than the previous one.” While the Supreme Court did not specify any recommendations for what actions the IEBC should take, Odinga’s National Super Alliance (NASA) demanded that the IEBC fire high-ranking electoral officials who oversaw the August 8 election, hire different firms to operate the ballot verification system, and insert international experts in the process to prevent any IT malfunctions. While the IEBC chairman had promised to make changes, the IEBC has not only failed to comply with any of NASA’s requested reforms, but the body has failed to enact any reforms whatsoever.

Supporters of incumbent Uhuru Kenyatta and his Jubilee party have welcomed the departure of Odinga as a sign of victory for Kenyatta. Kenyatta supporters have either appealed to Article 138 of the Kenyan constitution, which states that if only one candidate is nominated for the presidency, then that candidate will be automatically declared the victor, or encouraged the incumbent to move forward on the unopposed October 26 election as a yes-no approval vote. Jubilee even rallied around their majority in parliament to pass controversial amendments to the electoral reform law on October 11 that include: requiring any future election challenge to prove that irregularities altered the outcomes, raising the bar from the former threshold of only having to show that irregularities occurred; granting the IEBC chairperson the power to declare the winner if outstanding uncounted votes would not alter the result; and awarding victory automatically to the remaining candidate if the challenger withdraws from the fresh election.

The incumbent party has further taken advantage of Odinga’s departure by criminalizing protesters that support the opposition leader. While Odinga had encouraged public demonstrations since October 9, the government banned demonstrations in Nairobi, Mombasa, and Kisumu on October 12. The government ban has led to violent clashes between police and protests during which protesters have been shot, pepper-sprayed, and even hit with police vehicles. The University of Nairobi has indefinitely shut down after widespread violence between students and police. Amnesty International has warned that the demonstration ban is currently becoming government’s tool for brutally silencing oppositions supporters, and the ban seems especially concerning given that 37 people were killed in violence following the August 8 election, 35 of whom were killed by police.

Despite the legislative power that has bolstered Jubilee at the expense of Odinga’s NASA, the pervasive legal and political uncertainty presents an opportunity for Odinga. The Supreme Court decision on the election required that another election be held before November 1. If an election does not take place by that date, legal scholars have argued that a constitutional crisis will arise in Kenya. However, recent developments have muddled both whether there will be an election on October 26 and who will take part in the possible election.

Odinga’s departure from the election on the account of perceived lack of institutional reform is ultimately a political chess move with arguable legal authority. Odinga is relying on a Supreme Court precedent that followed the 2013 presidential elections. The decision stated that if a candidate were to withdraw or die before the fresh election, the IEBC must restart the nomination process for the parties. In this scenario, Odinga, by dropping out of the race, is calling for the Supreme Court to follow its precedent and allow for the parties to conduct the nomination process again in the next 90 days before holding a follow-up election.

Moreover, despite the Supreme Court ruling that the October 26 election would only be held between the Odinga and Kenyatta because they were the only parties to the appeal, the High Court ruled on October 11 that all eight of the candidates who ran in the August 8 election would be able to run in the October 26 election, even though these minor party candidates combined to tally less than one percent of the vote. This announcement lends credence to Odinga’s claim that the October 26 is truly a fresh election, thereby inducing the need for another nomination process. Despite the announcement from the High Court that all eight candidates will appear on the ballot on October 26, the French IT firm in charge of the digital ballot infrastructural OT-Morpho has stated that it is doubtful that it will be able to create enough amended ballots before the upcoming election.

On the same day, the IEBC further complicated matters and announced that Odinga had not officially dropped out of the race because a procedural error had led him to not fill out the proper withdrawal form. Although Odinga had notified IEBC of his withdrawal via letter, he had not yet completed the official form that would signal his legal withdrawal from the election. The past week has been a whirlwind in Kenyan politics, as a constitutional crisis is in the making due to legal and institutional discrepancies between the Supreme Court, High Court, Parliament, and the IEBC. While the recent legislative reforms passed by parliament intended to limit Odinga’s ability to challenge the election will be in effect by October 26, it remains to be seen whether they will pass the scrutiny of the High Court and eventual Supreme Court. Similarly, as Odinga awaits Supreme Court intervention to restart the 90-day nomination process in light of their 2013 ruling, it is unclear whether such a ruling would conflict with the November 1 deadline set forth by the Supreme Court in September. Kenyatta and Jubilee, nonetheless, press on for the October 26 election date with questionable legal and political legitimacy, but the next week will ultimately decide the fate of rule of law in Kenya for the foreseeable future.

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