06 Sep Overturning an Election: Kenya’s 2017 Poll
By Geoffrey Lugano
On 1 September 2017, the Supreme Court of Kenya, through a majority decision, annulled the 8 August election of Uhuru Kenyatta of the Jubilee Party (JP) as president. Kenyatta had been declared the winner of the August 2017 elections, with 54.17 percent of the popular vote. His closest challenger, Raila Odinga, of the National Super Alliance (NASA), had, according to the country’s Independent and Electoral Boundaries Commission (IEBC), garnered 44.9 percent. The Supreme Court’s decision was unprecedented, given that many expected Kenyatta’s election to be upheld, just as occurred when Odinga brought a petition against Kenyatta’s election in 2013. It was also the first time that a court in Africa had overturned a presidential election, and the third time that a presidential election had been overturned anywhere in the world. Several election observers, including the US based Carter Center, the European Union (EU), the Commonwealth, the African Union (AU), and the local Elections Observations Group (ELOG), had also been relatively positive about the elections in their preliminary statements. Several world leaders had sent congratulatory messages to Kenyatta and urged Kenyans to keep the peace.
While the JP celebrated their ‘win,’ Odinga disputed the results and claimed that the IEBC had rigged the elections in favour of Kenyatta. Suspicions were fuelled, among other things, by the fact that in the run up to the polls, Chris Msando, a senior IEBC expert, had been murdered, while NASA’s tallying centre was allegedly raided by security agencies and consultants who had flown in to help set up the centre were deported. Then, during the count, many polling stations failed to submit the results and a scan of the results (or forms 34A) through an electronic transmission system, with thousands of forms still missing by the time that NASA went to the Supreme Court.
Having declared that he would not take a petition to court, some of Odinga’s supporters opted for public demonstrations after the elections. The majority of them were drawn from Mathare and Kibera low-income settlements in Nairobi and Luo Nyanza Counties – Kisumu, Homa Bay, Migori and Siaya. In turn, the demonstrators were confronted by the police, some of whom used excessive force. The Kenya National Commission for Human Rights (KNCHR) estimated that at least 24 people were shot by the police, while others were beaten – including an infant who died from her injuries.
In annulling Kenyatta’s election, the Supreme Court found culpability on the part of the IEBC, but spared the JP from any blame in bungling the elections. The court is yet to release its full findings, which it promised to release within 21 days, but problems cited included irregularities around the electronic results transmission system. The court ruled that another round of the Presidential election should be conducted within the constitutional timeline of 60 days.
Against the backdrop of police brutality and the court’s findings of electoral malpractice, NASA’s support base has been consolidated like never before. The majority of supporters are united in victimhood, which is attributable to the excesses of the state, including manipulation of elections results. More specifically, the “Luo nation”, from which Odinga hails from, and where the police were strategically mobilized to suppress dissent, feel particularly victimized by the Kenyatta regime. At a recent burial ceremony in Kisumu before the Supreme Court ruling, the county’s Governor and a close Odinga confidant, Anyan’g Nyon’go, displayed a T-shirt printed “Luo Lives Matter.” The message gained traction among Kenyans, particularly NASA supporters in other parts of the country, who were sympathetic to the Luo agony and a sense of collective loss with the election results.
The claims of election malpractice has also kept the hopes of NASA supporters alive. Odinga argued that the long journey to Canaan (or liberation) was still on course during the court process, and the majority of his followers were cautiously optimistic about the possibilities of wrestling power from Kenyatta. The court’s outcome has revitalised Odinga’s chances of challenging Kenyatta’s second term in office.
With results annulled, Kenyans return not just to the polls but to the campaigns. So, what can the opposition learn from the first round if it not only wants to avoid malpractice, but also ensure that it further increases its share of the vote?
Perhaps, NASA’s leadership could take the opportunity to make changes to its campaign message. In the first round of elections, NASA’s presidential candidate, Odinga, premised his campaign on change, which was captured in the Swahili phrase, “Mambo Yabadilika” (‘things change’). While it is obvious that the unprecedent incidences of corruption, high costs of living, rising unemployment, insecurity and human rights violations require change, Odinga’s campaign slogan might have not persuaded many voters outside his strongholds. Let me illustrate.
The disbelief of many in NASA’s proclamation as the ‘alliance for change’ stemmed from several factors. After the 2013 elections, some NASA controlled counties had almost a similar share of allegations of corruption as the Jubilee Alliance counties. For example, Kilifi, Kisumu, Siaya, Kakamega, Homa-Bay, Migori and Nyamira, all aligned to NASA, did not escape accusations of corruption. Moreover, all of NASA’s leading figures – Raila Odinga, Kalonzo Musyoka, Moses Wetangula, Musalia Mudavadi and Isaac Rutto – have been named in some of the country’s infamous corruption scandals. Further denting the credibility of NASA’s agenda is the fact that, while Odinga has an unrivalled scorecard in the country’s democratization process, many questioned his performance – and that of other leading NASA figures – in government.
Granted, Odinga’s democratic credentials are unmatched by the current crop of Kenyan political elites. Odinga is on record for fighting the dictatorial Daniel Toroitich arap Moi regime, which led to his incarceration for almost eight years. Moreover, he was instrumental in the 2002 National Rainbow Alliance Coalition’s (NARC) ‘revolutionary moment’ that ended 24 years of misrule under the autocratic Kenya Africa National Union (KANU) led by Moi. He is best remembered for declaring “Kibaki Tosha” – a Swahili phrase denoting the suitability of Kibaki for the country’s presidency. Furthermore, Odinga led NARC’s nationwide campaign while Kibaki was in a wheelchair after a nearly fatal road accident. Mwai Kibaki succeeded Moi as president in Kenya’s historic 2002 elections.
The fact that Odinga campaigned for the adoption of the 2010 constitution is also uncontested. Additionally, he has emerged as one of the proponents of devolution, which holds so much promise for Kenya’s transformation and the diffusion of ethnic tensions. Odinga’s claims to social democracy have also endeared him to the poor masses, whom he claims to represent in their quest for better living conditions and ‘Canaan.’ Finally, the current IEBC owes its reconstitution to Odinga, who led several demonstrations to replace its former commissioners who were accused of incompetence and corruption. Even so, Odinga’s 2017 campaign message did not resonate well with many outside of his strongholds.
In Kenya’s electoral cycle, political parties also conduct primaries under which they nominate candidates to face rivals in the general elections. There was glaring evidence that Odinga’s party, the Orange Democratic Movement (ODM), together with its affiliate partners – Ford Kenya, Africa National Congress (ANC) and Wiper Democratic Movement (WDM) – conducted primaries which were bedevilled by chaos, allegations of favouritism and other non-democratic activities. These accusations dented Odinga’s democratic credentials outside his core support base, as NASA nominations seemed to be disorganized and dishonest, circulating the same crop of discredited politicians. So, the conduct of poor nominations also turned away some influential aspirants from NASA’s fold, thus denying them critical support, and the much-needed numbers in the country’s legislative agenda.
Given such problems, JP politicians, led by Kenyatta and William Ruto, argued that NASA had no moral authority to accuse them of corruption or proclaim fidelity to the principles of democratic governance. For their part, the JP campaign machinery focused on their development records, including roads expansion, increasing access to electricity, free maternity and increasing social security. The JP leadership also appealed to their core support base. The latter was salient in the vote rich Rift-Valley, which is inhabited by the Kalenjin, who appreciated Kenyatta’s promise to support Ruto – a member of the Kalenjin – for the presidency in 2022.
However, there is now an opportunity for NASA to rethink its message as Kenya heads once more into a new presidential election. In this respect, NASA will likely use the historical court ruling to frame its campaign.
Geoffrey Lugano is completing his Ph.D. at the Department of Politics and International Studies, University of Warwick, UK. He conducts research on Kenyan and Ugandan politics.
Featured Photograph: View of Jomo Kenyatta Statue and Parliament (Nairobi, 2005)