The leader of Kenya's opposition coalition, Raila Odinga, has withdrawn from the repeat presidential election ordered by the country's Supreme Court. Only two candidates were scheduled to compete in the upcoming poll, the other being the incumbent president, Uhuru Kenyatta.
A day after Odinga's withdrawal, the Kenyan High Court ruled in favour of including another presidential candidate in the ballot, meaning that the election is now likely to go ahead. The new candidate, Ekuru Aukot, was an interested party in the Supreme Court case that invalidated the August 8th election.
Odinga's pullout came in protest at the perceived inability of the Independent Electoral and Boundaries Commission (IEBC) to carry out a free and fair election.
In the recent petition to the Supreme Court, his National Super Alliance (NASA) accused the electoral commission of having failed in its duties to conduct an election, and demonstrated clear evidence of irregularities such as missing and forged electoral forms.
The Supreme Court found in favour of the opposition coalition, and so fresh elections were scheduled within 60 days.
While there is consistency to Odinga's distrust of the electoral commission, his position holds no legal consistency. The opposition made a petition to the Supreme Court and should therefore abide by its ruling.
The court found that the electoral commission failed to conduct the election appropriately, but that there were no grounds for saying Kenyatta's coalition, the Jubilee Alliance, had been the ones to rig it.
Odinga's opposition coalition petitioned the courts and got the result they wanted. They should therefore have stood by the ruling and continued to follow constitutional channels. By withdrawing Odinga is terminating the country's democratic processes. If the need for IEBC reform was enough reason to delay the election further, a case could have been brought to the Supreme Court on this basis.
The IEBC is a commission created by the Constitution, meaning its duty to conduct free and fair elections is a democratic fundamental. As such, political opposition to its operations has a clear legal remedy. Instead, Odinga's abandonment of the process has handed legal credibility to his rivals.
Kenya is in uncharted territory. The group that sought free and fair elections through lawful means - the opposition coalition - has now abandoned trust in the constitutional commission set up to bring about the poll.
In making the decision Odinga has also signed a death sentence on his political career stretching back 40 years.
A history of hard fought battles
Odinga has had a lot of practice over very many years in navigating the difficult path between acting according to the rules of the system and opposing manipulation of those rules.
In 2002 he joined a broader inter-ethnic coalition to force leadership away from the Kenya African National Union (KANU). In power since independence in 1963, KANU had consistently thwarted the emergence of free and fair elections in Kenya in the 1990s under President Daniel arap Moi.
But those who initially spearheaded the inter-ethnic alliance also seemed to abuse the system to their advantage in the 2007 elections. Odinga led popular protests against the swearing-in of President Mwai Kibaki in complaint of this. The standoff plunged the country into one of its worst periods of political violence, with over 1,000 dead and hundreds of thousands internally displaced.
In 2013 Odinga took the disputed election results to the courts. But the Supreme Court allowed Kenyatta's election to stand.
Many therefore felt that Odinga had finally got the democracy he'd fought for when the Supreme Court invalidated the 2017 results and ordered fresh elections. But that conclusion appears to have been premature. Odinga's exit from the democratic process means opposition supporters' faith in the system is at the point of collapse.
Odinga has been consistent in his criticisms of the electoral commission. And he has acted in a principled way. He should be praised for both.
Indeed, the failure of the electoral commission dates back as far as the constitutional referendum in 2010. A British court found that electoral commissioners accepted bribes from a UK firm to win the contract for printing ballot papers. In the 2017 elections, the accusation was that the local tallies did not match the central tallies being received electronically in Nairobi. The physical forms that would have reconciled the differences were then said to have been lost.
Despite the catastrophic failure to conduct this year's election appropriately, the electoral commission chairperson refused to stand down, reducing public credibility in the institution to nil.
Complete new election?
The NASA coalition has tried to substantiate its position. Technically-speaking, they say, their withdrawal means no election can take place, and so a complete new election should be organised. So rather than Kenyatta being handed victory on a plate, a longer time for fresh elections would be given, with all allowed to compete as if it were a very first round. That would provide a breather of at least 90 days, with additional time for parties to nominate new leaders.
But such a legal argument is fanciful. It is based on a misreading of article 138 (8) (b) of Kenya's Constitution which says that a complete new election must be organised if one of the candidates dies during the campaign period. The NASA coalition are arguing that their withdrawal from the elections is an abandonment that is forced by the failure of the electoral commission, and therefore tantamount to the death of a leader during the campaign period.
If they believe this is a solid legal argument, they can again petition the courts to invalidate the preparations for the fresh elections. But the legal argument is weak, and I doubt they will try this route.
The twist that NASA did not expect was the High Court ruling that a minor candidate is allowed to take the place of Odinga. That will mean an election that gives greater validity to Kenyatta's inevitable victory - an enormous blow to Odinga's strategy.
The High Court decision to include Ekuru Aukot is based on the fact that he was part of the original case that disputed the 2017 election results. But the court has made a grave error of legal judgment: Aukot was an 'interested party' to that case, not one of the 'petitioners'. This is, in legal terms, a big difference. If he was a successful petitioner in the Supreme Court case, and therefore a valid candidate now, the fresh elections should have involved him from the start and been contested by three candidates.
One cannot simply add candidates as one goes to make the election look competitive.
In any case, the inclusion of Aukot will be of no consequence to the result. In the disputed 8 August polls he received a mere 0.18% of the vote, making him the 5th placed candidate. That compares against a supposed 54.17% for Kenyatta.
The electoral commission will, however turbulently, take forward the court judgments and hold an election between Kenyatta and Aukot. The polls will certainly mean Kenyatta is declared President of Kenya for his second term in a row.
This is the fault of Odinga who has taken the decision to exit lawful processes prematurely. The road to competitive free and fair elections in Kenya extends ever longer into the horizon.
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.