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Kenya’s fresh election ruling: just another instalment in a highly contested process

Kenya’s Supreme Court judges preside before delivering the judgment that nullified last month’s presidential election Baz Ratner/Reuters

Kenya’s 2017 general election has been one of the most litigated general elections since the country’s first multiparty poll in 1992.

Just weeks before Election Day the country’s Independent Electoral and Boundaries Commission (IEBC) was still embroiled in court battles. In fact, days before the vote, it appeared in court at least twice.

In the first instance Kenya’s main opposition coalition – the National Super Alliance – alongside the Thirdway Alliance Party of Kenya challenged IEBC’s award of a ballot printing tender to Al Ghurair – a Dubai based firm.

The High Court of Kenya ruled for the plaintiffs effectively barring Al-Ghurair from printing the presidential ballot papers.

In its second appearance IEBC appealed the High Court ruling. This time the decision went its way. The Court of Appeal reversed the the lower court’s decision arguing that the election commission didn’t have time to find a new printer. The appeal’s court also ruled that the lower court should have barred Al-Ghurair from printing ballot papers for all elective seats and not just the presidential one.

After the second ruling, IEBC had the green light to print the ballot papers and conduct the general elections. Infamously, the presidential result was then invalidated by the Supreme Court triggering a fresh election slated for October 17, 2017.

The Supreme Court ruling was not just a victory for Kenyan democracy but for democracy everywhere. It underscored the independence of the judiciary, strength of public institutions, and Kenya’s deepening commitment to the rule of law. These lessons go well beyond Africa.

But despite the court’s decision, there are those who still maintain that President Uhuru Kenyatta won the election. The president himself was confident that he had garnered the most votes and he blasted the court for usurping the will of the Kenyan people, swearing to fix the problem in the Judiciary if he won the fresh election. His words were broadly interpreted as a direct attack on the judiciary.

Role of election observers questioned

Kenyatta’s remarks are at worst a direct attack on the judiciary and at best an indication that the Executive will interfere with judicial independence. That is a threat that Kenyan will have to contend with at home.

On the international stage, election observers are also facing a threat to their continued existence. The role and effectiveness of international election observation has been called into question after more than 400 observers gave the Kenyan election a clean bill of health. The Supreme Court decision has put them in a tight spot.

The Carter Center which sponsored the John Kerry-led observation team has praised the court decision as “both important and encouraging, because it highlights the independence of the Kenyan judiciary”, while trying to distance itself from any wrongdoing.

Media pundits across the continent and beyond have weighed in on the future of international election observation, some of them calling observer missions out for their formulaic rubber stamping of results. Whichever way one looks at it, the Supreme Court judgment is a stinging indictment on the international election observation enterprise.

Moving forward, election observer missions should address themselves to two key issues if they are to regain credibility. First, they must approach elections as a process rather than an event. In this way observer missions will be able to stagger their reporting to reflect the various phases of the electoral process.

In the Kenyan case for instance, observer mission would be expected to report separately on their findings. They would start by observing voter registration, voting, vote counting and tallying, before reporting on results transmission and verification process, and the announcement of results. A comprehensive report of findings would be made available once the election was over.

Second, observers must contend with the new African election reality that includes a strong information, communication and technology component. It is foolish to observe an electronic electoral process using the same approaches that were used to observe manual election.

Further compounding this issue for the observation industry is the fact that a number of African elections are now hybrids that integrate electronic and manual aspects. This is something that election observer missions must quickly come to terms with in order to update their mode of operation.

Next steps for Kenya

Kenya’s 2017 general election court rulings are significant in two ways. First, they highlight the functioning nature of Kenya’s democracy, which includes checks and balances. In this respect, the Judiciary has emerged as a strong, independent democratic institution. Second, the Supreme Court has to a large extent restored Kenyans’ confidence in their country’s judicial system.

Interesting times lie ahead for Kenya as it prepares for a fresh presidential poll now slated for October 17, 2017. The opposition alliance led by Raila Odinga has already demanded for the reconstitution of IEBC before the October poll.

On their part, Kenyatta, his deputy William Ruto and their Jubilee Party have vowed to ensure that the IEBC conducts the fresh poll as presently constituted. As things stand, Kenya still has a long road to travel before the current election dispute is resolved.

That notwithstanding, Kenyans have a date with destiny. The Supreme Court ruling has granted Kenyans another opportunity to decide the path their country will take. It is now anyone’s guess what the result of a fresh election will be. One thing is certain, though, the October 17 presidential election will have long lasting ramifications for Kenya’s maturing democracy.

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