The Supreme Court’s decision to uphold Uhuru Kenyatta re-election as president in the poll held on October 26 this year has put an end to what some feared was shaping up to be an infinite regress of election-petition-nullify-election again.
That finality will neither calm the incendiary passions inflamed by the August 8 election nor bring the protagonists, Uhuru Kenyatta and Raila Odinga, any closer in what looks set to become a full-blown political crisis.
The good news, if that, is that the end of the court drama leaves politics where it was on October 26.
The bad news is that the Court’s even-handedness, that is, splitting the judicial losses one apiece for Jubilee and Nasa, hardens each side’s position and probably makes the standoff intractable, setting the stage for an even more controversial election in 2022.
On its part, the Court has won few new friends this election season.
Critics of its first decision – including Kenyatta and Deputy President William Ruto – dismissed the judges as crooks and Nasa flunkies.
Those who dislike the second one – including some NGOs – think that it exposes the court as a cynical confederacy of elites who have now baulked at destabilising the status quo. The more charitable, like Nasa, say that the judges were intimidated by Jubilee to give a compliant decision.
In truth, the political crisis in Kenya is likely to deepen and no one, not Kenyatta or Odinga, not even the Supreme Court, can claim victory. Here is why.
Agony and ecstasy
Though Kenyatta seemed as ecstatic about the recent Supreme Court decision as Odinga was about the one made on September 1, in truth both knew from the very first that neither the standoff nor the polarised nature of Kenya’s politics was ever not going to be settled by arguments in court.
Odinga went to court to vindicate his belief that the election was stolen, not to solve the underlying political problem.
Once he won his victory he had to boycott the repeat election unless the IEBC made changes that meaningfully addressed the illegalities that the court found.
Without that, Odinga could not participate in a repeat election and convincingly allege fraud again. By winning the petition challenging the first election, Odinga raised the ethical bar for the repeat election. But by raising that bar, he undercut his own ability to participate in that election if the bar were not cleared.
It is now Kenyatta’s turn to be jubilant. He must know that the repeat election was deeply flawed but the Supreme Court decision removes part, if not all, of the sting in Odinga’s claim that the election on the 26th was a sham and illegitimate.
It also helps him and his party to shift discussion from that election’s political legitimacy to its legal legitimacy. To make that narrative plausible, he must now reaffirm the independence of the judiciary.
The Supreme Court thus finds stranded in a bizarre no-man’s land, praised for its independence and standing on principle for making two decisions that, in effect, cancel each other out.
The political effect is that the protagonists will remain stuck in the rut and their mutually hostile supporters will stay angry and militant.
Odinga, if he means to remain true to his base, has no choice but to escalate his campaign against Kenyatta, who must, in turn, remain intransigent. His olive branch to Nasa on inauguration day was telling: it was a brusque, iron-fist-in-a-velvet-glove affair, more warning than hand-of-friendship.
In truth, it is hard to see how the two can find a meeting point. What Kenyatta could offer Odinga, Odinga couldn’t accept without risking the wrath of his supporters. What Odinga would want, Kenyatta could not offer without endangering the deputy president’s prospects in 2022 and facing the hostility of his base.
Why is this so? Any deal-making between Kenyatta and Odinga is now hostage to succession politics.
The deal-maker in Jubilee is William Ruto, a man with a Florentine instinct for political intrigue. Yet Ruto’s interests will inevitably be damaged by any deal that Kenyatta makes with Odinga, especially if the deal involves power sharing.
Do the calculations. Kenyatta is serving his last term. Much of what he could offer Odinga would entail positions in government, that may involve changes to the law, including perhaps even the Constitution.
There are two problems with that. First, Odinga has been here before, in 2008. He wants neither the label of “career Prime Minister” nor an unrewarding climbdown from his elevated moral claim that the August 8 election was a fraud.
His supporters have taken a serious beating and 62 people have died in a brutal police campaign against Nasa. Odinga’s argument for an interim government followed by a truly honest election looks like the minimum he can sell to his base.
Kenyatta on the other hand cannot sell an interim government followed by a mid-term election to his base, nor could he, even if he wanted to, persuade Ruto, who has his eyes firmly on the presidency in 2022, to accept a government of national unity in which positions (and any new ones that might be negotiated with Nasa) are shared equally between government and opposition.
A negotiated settlement would be a three-way sharing of power, between Kenyatta, Ruto and Odinga. Everyone gains but Ruto: Kenyatta wins the calm he needs to work on legacy projects and Odinga worms his way back into government.
Mr Ruto’s hand for 2022 is completely weakened especially because the only way to create room for Odinga’s team would be to sack some of Ruto’s allies.
Ironically, then, even though Ruto and Odinga are instinctual politicians and inveterate deal-makers, in this crisis that seems made to order for their talents, there are no mutual interests.
What then? The worst-case scenario is that the country stumbles its way to 2022 and holds yet another divisive election.
In the meantime, the economy takes a beating as revenues shrink and debt repayments bite. Kenyatta could limp his way to the end of term but then he would have no legacy. He has weakened Kenya’s democracy partly on promises of development. If the economy fails, he cannot redeem that pledge.
The best-case scenario is that a new coalition of leaders emerges, perhaps from among the Governors, the business community, the clergy and civil society that refocuses debate on what creates Kenya’s fractious elections: An ethnically divided society and its winner-take-all presidential system.
Studies show that in deeply divided societies, political power is a do-or-die affair: It determines not just who is included or excluded but also who gets pubic goods and services. Given this, ethnic groups cannot separate electoral defeat from communal exclusion and economic loss.
In parliamentary systems, ethnic elites form coalitions that bargain for power and opportunities for their people, which enhances feelings of justice and inclusion. In Kenya, exclusion is also territorial because identity groups live in defined regions. This must be fixed if Kenya wants to make elections less deadly.
Thus far, the politics: What of the Supreme Court? There are those who think, especially in civil society, that this case has irredeemably damaged the Supreme Court.
That is a supposition grounded more in hope than fact. In truth, the Court’s unpredictability has probably permanently unsettled the political class. At some level, that is a good thing. The idea that the Supreme Court is a toady of the government of the day, as the 2013 petition led many to believe, has been proved false.
When the court nullified the election. the reactions on both sides were hysterical: The one of uncontrollable joy, the other of unbridled rage. It was inevitable that if the pendulum swung the other way, the two sides would trade positions but the emotional intensity of their different reactions would stay the same.
An incoherent claim
The Court was certainly right to reverse the central holding of the 2013 presidential petition and to hold that an election that has not been held in substantial compliance with the law is no election at all and must be nullified.
Court critics of the first decision carped that elections are about numbers. That is an incoherent claim even on its own terms. Even those critics know that though elections be about numbers, only numbers that come out of a process authorised by law count.
If not, then there is nothing to stop an electoral body from conjuring up results out of a telephone directory or from the headstones at the cemetery. Critics will now wait to see whether the Court remains true to the reasons that it gave for nullifying the election of of August 8.
Of interest to them are the substantial irregularities that they claim that the IEBC committed on October 26. Some of these irregularities are much the same as those that were involved in the earlier case. But there are also new ones.
There is IEBC’s confusing stance on the 25 or so constituencies, mainly in Nyanza, in which no elections took place. The Commission initially reported that it had postponed elections in these constituencies. Later, it turned out that those elections had actually been cancelled, two actions with vastly different legal consequences.
As in August, there are discrepancies in the results shown in the forms from the polling station as against the forms at the constituency level and then again between the results in both sets of forms and those posted on the Commission’s public portal.
Finally, IEBC did not explain why KIEMs kits have logs for days other than polling day, the only day on which the kits should have been active. Those who don’t trust the results from October 26 think that these irregularities prove systematic fraud and that the Court, by unanimously upholding the second election, must inevitably reverse the reasoning it gave for its September 1 decision nullifying the election of August 8.
Without pre-empting what the Court will say in its full judgment, the critics are missing an important point. It was always going to be much harder to nullify a second election, this for two reasons:
One, the Constitution is not explicit about what happens if there is a second invalidation. Most people assume that the process is cyclical, that is, that the Court must keep nullifying illegal elections until a lawful election is held. But the Constitution does not say so explicitly.
Why should the Court assume a potentially infinite regression on a legal question this momentous? Moreover, this time round, the Court would have had other reasons for self-doubt.
They had been viciously attacked in the much clearer first case, what would have happened this time? And what would they have ordered once they nullified the second election?
Two, the critics overlooked the fact that once the Court nullified a first election, the threshold of illegality in that case would become the benchmark for the future. This means that a future election was unlikely to be nullified unless the Court believed that the illegalities had reached, even surpassed, that benchmark.
Lawyers involved in the second petition should have known that a second election would not be nullified unless the illegalities and irregularities met the threshold of the election of August 8. On the whole, the Supreme court is pretty much where it was on the August 8: Trusted and distrusted in equal measure.
What outlook, then? The overall picture is a grim one. There is no quick resolution on the horizon. Nasa’s economic boycotts and the sporadic protests are likely to continue. Even if unsuccessful, these will become a headache and the effects on the economy will be significant.
The economic boycotts, for instance, are already hurting, even though they are haphazard. In the medium term, boycotts will spawn uncertainty in boardrooms and force directors in target companies to play politics by managing perceptions on both sides.
The protests will get worse if the economy underperforms, which now seems inevitable. At that point, it won’t matter who organises the protests, Nasa or labour unions.
Kenya, in short, is in a deep crisis; defined by Antonio Gramsci, the Italian Marxist, as a situation in which the old order has died but the new one is yet to be born.
Wachira Maina is a constitutional lawyer based in Nairobi.