After a Supreme Court ruling that invalidated Kenya’s August 8 presidential election, the country now finds itself in a moral predicament between political stability and electoral credibility.
On one hand, the ruling that ordered a fresh presidential election was a win for the democratic process the world over. The court found that Kenya’s Independent Electoral and Boundaries Commission was in violation of constitutional procedure. It also found that the commission had violated election law and in so doing impugned the credibility of the election.
On the other hand, the court’s decision has ushered the country into a period of political instability. Where it would have closed the chapter on the 2017 election cycle, it is now gearing up for a repeat poll slated for October 26.
Kenyans now find themselves in a tight spot made even more uncomfortable by demands being made by Raila Odinga and his National Super Alliance. The opposition is insisting that certain conditions, including reconstituting the election commission and reprinting key election documents, must be met before the October 26 election can be held.
The opposition’s hard stance could result in a delayed election. This could also happen if OT-Morpho, the French biometrics firm which supplied the electoral commission with its electronic voting system fails to have a new system ready in time. It’s indicated that it won’t.
If indeed the key issue with the last election was that the voting system was not “simple and verifiable” as demanded by law, then any delays could be interpreted as being in the interests of a free, fair, credible and transparent election.
But for those who argue that no electoral process can be perfect, and that the August 8th poll was merely dogged by minor and inadvertent errors, then it begs the question: what is more important, electoral credibility or political stability?
The Supreme Court prioritised electoral credibility by invalidating the presidential election result on grounds that the election commission had committed illegalities and irregularities.
In doing so, it broke ranks with foreign election observer missions which had concluded that the presidential election was credible. By and large the Supreme Court ruling was a win for Kenyans and the rule of law. The court took the opportunity to audit the electoral process for transparency and to define the parameters of a credible election.
But its ruling raised questions of its own. For instance, the court ruled that the electoral commission didn’t strictly adhere to election procedure as set out in law. It also held that there had been tampering with the commission’s electronic voter management system. But it mandated the same commission to carry out a fresh election within 60 days.
Because the court gave no direction on the reconstitution of the commission, the petitioner Odinga and the respondent President Uhuru Kenyatta are now at an impasse over who should remain at the commission.
Those who disagree with the Supreme Court ruling see the court’s decision as a subversion of the will of the Kenyan people. For them, the ruling was a destabilising force which didn’t’ reflect the people’s decision.
Giving credence to this argument is the fact that Kenya is viewed as the economic hub of East Africa. If the country does not return to normalcy as quickly as possible there will be a ripple effects, including economic, across the region.
On top of this, Kenya finds itself in a precarious situation because the executive is at odds with the judiciary. Kenyatta’s Jubilee Party has the majority in both houses of Parliament. It is therefore within its capacity to limit the independence of the judiciary should it continue to feel aggrieved by the Supreme Court decision.
This could happen through a parliamentary referendum as per Article 256 of the Constitution and would involve members of parliament deciding to amend the constitution without a popular vote.
But by far the most pressing threat to Kenya’s continued political stability is the possibility that the Supreme Court may have created a situation in which Kenya could remain in election mode ad infinitum. Nothing stops a new petition from being filed should one of the candidates contest the next poll results.
If we look at Kenya’s neighbour Rwanda we see an example of a head of state that’s arguably prioritised a semblance of political stability over election credibility. Paul Kagame was recently reelected for the third time. Some argue that his rule has benefited Rwandans because the country has shown better socio-economic outcomes than most African countries.
But there tensions simmer and in the absence of electoral credibility, Rwanda’s political stability may be skin deep.
Rethinking Kenya’s election system
The Kenya case raises questions about elections in Africa and whether they are a force for political stability or instability. I would posit that Kenya has made great strides to improve electoral credibility since its catastrophic 2007 election.
In conclusion, election credibility and political stability aren’t mutually exclusive.
There should be a positive correlation between democracy and the improved well being of a state and its people. But in a country like Kenya with 40-plus tribes, the more populous tribes will always take advantage of their voting might, while the less populous ones struggle to compete. The system just does not work in their favour. It would seem therefore that they are locked out – not by choice but by circumstance.
So, does a majoritarian, “winner-takes-all” system suit an ethnically diverse society like Kenya’s?
Perhaps, not. I’m persuaded that there needs to be a re-imagination of electoral democratic practices in Africa. Kenya should take recent events as an opportunity to clean up its institutions and electoral system. If it doesn’t, future polls will continue to offer up a point of diversion between electoral credibility and a tenuous political stability.