4 September 2017

Kenya: Supreme Court Has Given an Impossible Deadline for the Repeat Election

analysis

The Kenyan Supreme Court has found that the August 8 presidential election result is invalid. It blames the electoral commission, not the declared winner, Uhuru Kenyatta. Kenya's leading newspaper praises the decision as a step towards the rule of law, but I am less sure about what this means for the ability of the political establishment to stick to the terms of the country's constitution.

The Supreme Court has given the country 60 days to hold fresh elections. The time period is in accordance with section 140 (3) of the Constitution, but the court failed to tell the public exactly what the Independent Electoral and Boundaries Commission (IEBC) had done wrong. This leaves Kenya with a compromised commission rerunning an election.

Chief Justice David Maraga noted that the court had previously failed to provide a full judgment on the 2013 elections and this had not been received well. He then did exactly the same. Of course, the court had to provide a judgment on the opposition's petition within 14 days, as stipulated by the Constitution. This is the period before the president-elect is inaugurated. The court would have sparked a constitutional crisis if it had not made any decision.

But by not explaining how the IEBC has failed, the court has created a problem. It's impossible to organise the next election and reform the commission in the time given.

Time pressure

The court gave itself up to 21 more days to deliver its full judgment. This would leave the country with only 39 days before the fresh election. Already, opposition leader Raila Odinga has declared that his coalition will refuse to participate in presidential elections under the current leadership of the IEBC.

But, as a newspaper commentator observes, it's just not feasible to remove IEBC commissioners without a tribunal, which is then reviewed by parliament. Complicating matters further, three citizens have filed a separate petition to ask the courts to remove certain IEBC officials over their wrongdoing.

Even once the full judgment is handed down within 21 days of the ruling, it probably won't indicate criminality at the level of individuals. The Supreme Court was asked only to determine the validity of the election overall. Its full judgment can indicate how the process of the election must be improved.

The election was judged to be void because the electoral commission was at fault. This suggests it must change its procedures - and perhaps its personnel - if better elections are to take place. A new election must avoid the errors of the previous one.

As political scholar Gabrielle Lynch explains, it is not possible to correct all the problems in the time allotted. These include the process for transmitting results, the use of security forces and the uneven use of state resources.

Serious problems

Indeed, the problems are serious. Months before the election was held, the courts ordered the IEBC to stop printing ballot papers, because of claims that the Dubai-based firm Ghurair held too many links to Kenyatta.

The claim against Ghurair was dismissed due to insufficient evidence. But part of the IEBC's successful defence against the court order was the time pressure of having to hold an election in a few months' time. If time pressure was a valid reason then, why would it not be now? Why would an even more rushed election be credible?

The murder of the IEBC's IT manager, Chris Msando, will now be under even closer scrutiny by the media. But even if the crime was directly related to the muddled tallying of votes, there isn't time before the rerun to find individuals guilty. It is highly unlikely the full Supreme Court judgment will touch upon this tense topic. And that further reduces the credibility of the current IEBC.

Credibility concerns

The wider concerns with the IEBC date back to the "Chickengate" scandal. A UK court found a UK firm had bribed the IEBC (then the Interim Independent Electoral Commission) to get the contract to print ballot papers for the 2010 Kenyan constitutional referendum.

The UK co-conspirators were found guilty. But no-one from the Kenyan side was put behind bars by Kenyan courts. This created mistrust of the IEBC leaders. The current crisis will revive past anxieties like these, but leave no time for meaningful reform.

In Kenyan elections, local witnesses must sign the official forms to say the local tally is accurate. Central tallying organised electronically must then match with these local forms. The election is considered free and fair if this is done properly. The Supreme Court has ruled that both the IEBC as a whole and its chairperson, Wafula Chebukati, are responsible for the failure on 8 August.

Chebukati has refused to stand down. His response doesn't boost public confidence in the institution. If the public is to trust the rerun, he must go.

Asking for more time

The IEBC should then petition the Supreme Court to give it more time.

It was done before, when the 2013 election was delayed because of the difficulty of implementing aspects of the new Constitution.

Section 86 of the Constitution requires the IEBC to collate the results of an election openly and accurately. At present, it can't meet this requirement because it does not know what it must do differently from before. The IEBC should therefore depend on Section 86 when it asks the Supreme Court for more time.

Disclosure statement

Dominic Burbidge does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.

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