Kenya’s Election Challenge: Addressing electoral grievances

Kenyans headed to the polls on 9 August 2022 at a general election. The results were tight, and the process of counting the votes and relaying the results difficult, and excruciatingly slow. The presidential contest was particularly fierce and close as, according to the officially announced results, the President-elect and incumbent Vice President, William Ruto, garnered 50.49 per cent of the vote against his main challenger, Raila Odinga, who had 48.85 per cent.

Despite credible claims of large-scale corruption against him, current Vice President William Ruto managed to run a largely successful ‘hustler’ campaign focusing on his humble background that enabled him to overcome his status as an underdog. Incumbent President Uhuru Kenyatta has been supporting his competitor Raila Odinga after falling out with Ruto. Whilst the ‘hustler nation’ narrative has paid off politically, at least, as far as his election is concerned, it remains to be seen whether Ruto’s long-term strategy of dismantling the dynasties and remodelling Kenya’s economy in his so-called ‘bottom-up economic’ model will be successful.

Results Challenged

The Independent Electoral and Boundary Commission (IEBC) declared the presidential election results on Monday, 15 August 2022, almost a week after voting was concluded. However, four of IEBC’s seven Commissioners called a press conference in which they announced their decision not to endorse the result, alleging that the process was ‘opaque’. Against this background, the IEBC Chairman, Wafula Chebukati, decided to announce the results of the presidential elections, declaring Kenya Kwanza’s candidate William Ruto as President-elect. Cognisant of the prevailing situation and aware of the mood in the country, Chebukati stated that he fulfilled his duty of delivering election results within the seven-day timeframe as provided for in the Constitution, despite receiving enormous pressure and personal threats.

In an attempt to substantiate their position, on Tuesday, 16 August a further statement by the four dissenting Commissioners cited a lack of insight into the tallying process and unsatisfactory results. In particular, they cited the missing number of the total number of votes in the official result, and the insufficient adding-up of percentage points that the candidates allegedly achieved (which was 100.01% in total, and has already been shown to be a mathematical rounding off inaccuracy rather than a genuine mistake), as reasons for their disagreement with the results declared by the Commission’s chairperson.

Following up on these procedural claims and coordinated with the dissenting Commissioners, Raila Odinga publicly announced that he would legally challenge the results. He claimed that the announcement of a President-elect would be ‘null and void’. The presented arguments were procedural, claiming that the IEBC Chairman had no legal right to proclaim a binding result, with four of seven Commissioners of the IEBC disagreeing. Odinga’s legal team officially submitted their petition at Milimani Law Courts on Monday, the 22 August 2022. Other than Odinga, four other Kenyans have since filed petitions at the Supreme Court, with a possibility of more being filed before the end of the deadline. The Supreme Court has up to two weeks – until 5 September 2022 – to produce a final decision on the election results.

Assessing the Supreme Court’s Options

Opinion is split over how the petition challenging Ruto’s election may be decided. Nevertheless, a constitutional and legal path to addressing electoral grievances is widely seen as a contribution to strengthening democracy and improving subsequent polls. The outcome of the challenge will add to the precedent of the Court’s nullification of the 2017 Presidential elections over illegalities and irregularities of the process. The present claim by the four IEBC Commissioners that the process was ‘opaque’ hints at the area of attention (process as opposed to the outcome) for would-be petitioners. Concrete evidence of voting or tallying irregularities has not been presented so far, even though Odinga’s legal team claims to be in possession of evidence of ‘massive rigging’. Huge volumes of documents in support of Odinga’s petition have since been delivered at Nairobi’s Milimani Law Courts. In the petition, Odinga is seeking 23 reliefs including an order for inspection of IEBC servers and scrutiny of the rejected and spoilt votes, forensic audit of the Kenya Integrated Elections Management System (KIEMS) kits, the IEBC portal and the presidential election forms including Forms 34A, 34B and 34C.

Whilst the validity of Ruto’s election is now a matter to be determined by the Supreme Court, the Election Monitoring Group (ELOG), a broad civil society-based election observation group, has publicly confirmed that IEBC’s announced results match its count. On the other hand, civil society groups and election observer situational rooms report voter and observer intimidation in a substantial number of cases. Procedurally, legal opinion appears divided as to whether IEBC Chairman Chebukati’s declaration, with four of the IEBC Commissioners dissenting, upsets constitutional and legal provisions regulating the validity of IEBC’s official results. This points to a legally grey area which is subject to the Supreme Court’s interpretation of the Constitution, the law, and indeed the Court’s determination and pronouncement on both.

The bar is set relatively low according to precedent set by the Supreme Court’s 2017 nullification of the Presidential election results. Based on this precedent, should there be credible evidence of substantial irregularities in the tallying, relaying, and announcing of the presidential election results, the Court can (and in 2017 did) nullify the election without evidence that the irregularities affected the outcome. However, how the Court might set the threshold on irregularities sufficient to trigger a new election and apply it in this case are yet to be determined. The Supreme Court has to reach a decision in two weeks, and its decision will be critical to the maturing of Kenya’s electoral and democratisation processes. As in 2017, the political and public reaction to the judgment will then prove decisive for the further institutionalisation of Kenya’s electoral democracy. Arguably, Kenyan democracy’s true test lies in between elections, and how the country navigates yet another disputed Presidential election has major implications on its democratisation.

William Ruto: A Polarising History

William Ruto, the President-elect, has a complicated past in Kenya’s election history. In the 2007 elections, he was a leading member of Raila Odinga’s Orange Democratic Movement (ODM). Odinga (with Ruto in his camp) lost the elections against Mwai Kibaki of the Party of National Unity (PNU) despite credible evidence of substantial rigging against the ODM candidate. The reaction to this situation split the Odinga-Ruto-relationship. While Odinga preferred a pragmatic approach of giving in, Ruto was unwilling to accept the result. He went on to engage in ethnopolitical mobilisation among his constituencies in the Rift Valley region, solidifying his political base and eventually falling out with Odinga midway through the coalition government under the Kofi Annan-led negotiated post-election arrangement that ended the horrific 2007-8 post-election violence.

Ruto was subsequently implicated in the events, which saw him and five others, including President Uhuru Kenyatta, indicted by the International Criminal Court (ICC). As was the case with the others, the ICC case against Ruto later collapsed due to lack of evidence and non-cooperation of the Kenyan government, led by Kenyatta and Ruto as President and Deputy respectively. Despite the termination of the ICC cases, and contestations by his supporters, there is a widely held view, both in Kenya and beyond, that Ruto may have been involved in organising the post-election violence, in which more than 1,000 people were killed.

Ruto’s political stance has remained contested. He is known to have opposed Kenya’s Constitution in 2010. He is an outspoken critic of civil society and not a strong supporter of devolution. Following the nullification of the 2017 presidential election results, together with President Kenyatta, Ruto fiercely criticised the ruling and verbally attached the Judges of the Supreme Court referring to them as ‘wakora’ (crooks). Some of these qualities and factors render Ruto a polarising leader who attracts admiration and criticism in equal measure. The election result indicates that he has a solid support base of a third of the electorate, with another third opposing him. It remains to be seen if and how President-elect Ruto will unify a deeply divided nation after such a polarising election.

An Unlikely Repeat of 2007

Whilst election related impasses are a familiar situation in Kenya, the country has transformed significantly from the devastating events of 2007-8. As of now, the country remains calm. There is an impressive level of peace messaging through the mainstream and alternative media. Both Ruto and Odinga have called upon their support base for calm in the country and indicated their preference for a legal and constitutional path for dealing with election-related issues. These appeals are accompanied by a sustainably stable institutional setup. The Judiciary, in whose hands the electoral dispute now rests, is able to withstand political pressure from either side, although this will be a further test of the independence of the institution and the particular judges involved.

Kenya’s governance apparatus has developed substantially since 2007-8, when the worst election-related violence occurred, and is much more capable of dealing with situations of political crisis related to elections. The security agencies, especially the National Police Service (NPS), have equally undergone a significant transformation since 2007-8 and appear more prepared and capable of dealing with any incidences of lawlessness. The unanimous support of the Supreme Court in its decision-making and implementing the Court’s eventual decision is, without doubt, the most important task for international observers and partners at this critical juncture in Kenya’s institutional development and democratisation process. It is important that international partners affirm the need for an independent judiciary and that it be allowed to play its constitutional role in election disputes free from political pressure. Thus, the ruling by the Supreme Court on petitions, including by Odinga, challenging Ruto’s election, in the coming two weeks, must be accepted and respected by all.

In addition, peacebuilding and independent election observer initiatives should be supported. The National Steering Committee on Peacebuilding and Conflict Management (NSC) has identified six priority areas where local peace committees should play a proactive role in managing potential incidences of post-election violence. The committees can build on substantial experience in local conflict management in the aftermath of the 2007-8 crisis where it has developed expertise and capacity at local agreement mediation. Reactivating and supporting these local peace committees to work pre-emptively towards preventing potential outbreaks of inter-communal violence, especially in Kenya’s Western parts, the Coast, and informal settlements of major cities including Nairobi, could go a long way in the upcoming weeks.

Authors

Ibrahim Magara is a PhD Candidate at Loughborough University, UK. He is particularly interested in regional peace and security in Africa.

Dr Jan Pospisil is PeaceRep co-investigator. He works with the Austrian Peace Centre and is an Associate Professor in Political Science at the University of Vienna.