Can courts really resolve Kenya's deepening conflict?

Wednesday November 15 2017

Kenya’s Supreme Court in session during the 2017 presidential petition.

Kenya’s Supreme Court in session during first presidential petition in 2017. The court begun another gruelling seven-day session on November 14 to determine whether President Uhuru Kenyatta will be sworn-in. PHOTO | AFP 

By MUTHONI WANYEKI
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As should have been anticipated, the process and outcome of the “fresh” presidential poll are before the Supreme Court.

No less than three presidential petitions have been filed. Two petitions — from Harun Mwau on the one hand and Khelef Khalifa and Njonjo Mue from the umbrella Kura Yangu, Sauti Yangu on the other — have to do with the Independent Electoral and Boundaries Commission. The last petition has to do with the actions of the opposition National Super Alliance.

Read the submissions of KYSY in detail, the argument is simple. That, contrary to Supreme Court orders from September, the IEBC failed (yet again) to conduct the poll in conformity with the Constitution and the law.

The evidence?

The IEBC’s disregard of the withdrawal of the Nasa candidate, which should have triggered a new electoral process. Which also disregarded the place of political parties — in this case, Nasa and its constituent parties — which should have been entitled to a separate audience and afforded the opportunity to replace their candidate through a new nomination process.

Then there was the constitutionally insufficient and discriminatory time afforded for campaigning resulting from the IEBC’s flip-flopping around who would or wouldn’t be on the ballot.

Given the alleged sabotage of the “fresh presidential election team” within the IEBC, the private decision-making of four commissioners, the threats and intimidation of commissioners by political actors, the lack of disciplinary action against staff responsible for the August presidential poll and the IEBC’s failure to audit the information technology system and conduct quality assurance, the operational and administrative independence of the IEBC was compromised.

The KYSY petition therefore calls for another declaration to the effect that the poll be rendered null and void, that the declaration arising be similarly rendered null and void and that another poll administered by an electoral management body addressed by the Supreme Court be ordered. In addition, it calls for a declaration to the effect that the unconstitutionalities of the electoral law amendments be voided.

We wait to see what the Supreme Court does with this and the other two petitions. And that whatever independent spirit the Supreme Court Justices went into the first adjudication with remains intact given the immense amount of pressure they have been subjected to ever since.

The bigger moral of the story is, however, whether adjudication of this particular electoral conflict is the best way forward. As Nasa proceeds with its civil disobedience campaign — the boycott of certain companies, its push for People’s Assemblies at the county level already underway and its public protests set to resume — it seems clearer than ever that adjudication alone cannot resolve the opposition and public anger that persists.

Other options remain on the table. Direct negotiations between the two parties. Or mediated negotiations.

L. Muthoni Wanyeki is the Africa director of the Open Society Foundations. Muthoni.Wanyeki@opensocietyfoundations.org