Kenya’s presidential election of 8 August was annulled by the Supreme Court, which ruled it unconstitutional – a historic first for the country, and for Africa. The election was repeated on 26 October. Turnout fell from 79.5 per cent to 38.8 per cent as the effects of opposition leader Raila Odinga’s boycott, broader public disenchantment with the credibility of the process and political fatigue made themselves felt. Even in areas supportive of the incumbent, President Uhuru Kenyatta, participation dropped sharply. On Monday 30 October, the Independent Electoral and Boundaries Commission (IEBC) declared Kenyatta the winner, with 98 per cent of the vote.
The coming weeks may see further drama, as the Supreme Court will once again be called on to rule on the process. Despite reports of divisions among the Supreme Court judges – and government attempts to intimidate them – it seems possible that this second election will also be ruled unconstitutional. The court has a daunting task ahead of it. It will have to assess several issues that call the integrity of the election into question, including a High Court ruling on the illegal appointment of returning officers; a statement (later retracted) by the chairman of the IEBC that he felt unable to guarantee a free and fair election; and the controversial cancellation of voting in some counties.
The IEBC suspended voting in several opposition strongholds and declared Kenyatta the victor without results from 25 constituencies. It justified this decision by referring to Section 55B of the Elections Amendment Act 2016, which allows it to declare a winner even if some results are missing, as long as it is satisfied that the overall outcome will not be affected. However, Article 138 of the constitution states that ‘an election shall be held in each constituency’. Should the Supreme Court annul this election, Kenya will be the first country in the world in which the highest court has voided both a first presidential election and its repeat.
It remains uncertain whether the independence of the judiciary will be respected by Kenyatta. Reforms undertaken following widespread violence around elections in 2007 have significantly strengthened Kenya’s courts, and Kenyatta stated, in English, that he would accept and respect the decision of the Supreme Court on the first election. But later the same day, in Kiswahili, he referred to the judges as ‘crooks’, said that they had undermined the ‘wishes of the people’ and vowed to ‘fix’ the court. Once Kenyatta is sworn in, there are fears he will sign into law an act to limit the powers of the court to annul future elections.
Police brutality has also been an alarming feature of this election period, making it clear that the police reforms initiated after the violence of a decade ago, and later enshrined in the constitution, have failed. Since 8 August, at least 70 people have died, mostly at the hands of the police and in areas supportive of Odinga’s National Super Alliance (NASA) coalition. Human Rights Watch and the Kenya National Commission on Human Rights (KNCHR) have been able to verify that at least 40 people have been shot or beaten to death by the police. This number includes several children and a six-month-old baby. Others were killed by pepper spray or tear gas fired at close range. A provisional government tally found that a further nine people were killed in unrest provoked by the 26 October election. The Constitution and Reform Education Consortium has also documented 60 cases of sexual violence since 8 August. This has predominantly affected communities that have been heavily policed due to election protests, with victims stating that perpetrators have mostly been police officers.
There has been little action to tackle these abuses by the institutions and individuals tasked with holding the police accountable, such as the Independent Policing Oversight Authority (IPOA) and the National Police Service Commission. Joseph Boinnet, the inspector general of the National Police Service, has not only denied police violence on national television, but has also reportedly previously told police officers that they should not cooperate with IPOA during investigations.
It has become clear that major reforms are required within the police and in oversight institutions, and that the National Gender and Equality Commission, KNCHR and IPOA need to be adequately funded, staffed and trained, to work together to investigate what has occurred in the period since 8 August. Ensuring that clarity emerges on the killings and sexual violence perpetrated by the police, that victims and family members are given effective channels of redress, and that meaningful reforms to tackle the culture of police brutality and impunity are implemented is vital. Kenya’s civil society also has a major role to play in ensuring that tackling police brutality is a priority.
But Kenya also faces political problems that cannot be addressed by the Supreme Court or institutional reforms. Although both Uhuru Kenyatta and Raila Odinga have shown themselves open to dialogue at various junctures over the past weeks, influential NASA and Jubilee leaders have reportedly put pressure on them not to negotiate and used divisive rhetoric to drive the two sides apart, in order to strengthen their own hands in preparation for the 2022 election and political succession battles.
If concerted action is not taken now, the next five years will be turbulent and difficult for Kenya. The resentment of many citizens who did not vote on Thursday will only have deepened if Kenyatta governs for five years on the basis of such a flawed election, and the fragile alliance that holds together the Jubilee Party is likely to splinter. Even within NASA, which claims to present a united front of the marginalized, many groups have been sidelined, from the leadership downwards – including women, young people, and communities from northeastern Kenya. Abuses by police and the political stalemate are deepening entrenched ethnic divides, and moving Kenya further away from a situation in which national cohesion is possible.
The constitution of Kenya makes it clear that the president should be a symbol of national unity. Both Jubilee and NASA need to keep this in mind in the coming weeks. Dialogue that takes inclusive politics seriously must be initiated now, otherwise Kenyan elections will continue to be a replay of old grievances and hatreds that hurt the poorest and the most vulnerable.
Rebekka Rumpel, Research Assistant, Africa Programme and Natasha W. Kimani, Academy Fellow, Africa Programme.