Anxiety in East Africa as Kenya Supreme Court settles election dispute

Sunday September 04 2022

Supreme Court of Kenya judges (from left) Isaac Lenaola, Smokin Wanjala, Philomena Mwilu (deputy CJ), Martha Koome (Chief Justice), Mohamed Ibrahim, Njoki Ndung’u and William Ouko during the second day of hearing of presidential petition at Supreme Court, Milimani on September 1, 2022. PHOTO | JEFF ANGOTE | NMG


The apex court is expected to decide on nine issues raised by the petitioners around the integrity of the election and the legality of declaring Deputy President William Ruto the president-elect

It is a nail-biting time in Kenya as the country awaits the verdict of the Supreme Court on the presidential election petition filed by former Prime Minister Raila Odinga and others.

The apex court is expected on September 5 to decide on nine issues raised by the petitioners around the integrity of the election and the legality of declaring Deputy President William Ruto the president-elect.

The debate has been on the possible scenarios around the petition, with legal experts looking at three probable ones.

The court may uphold the verdict of the Independent Electoral and Boundaries Commission (IEBC) in declaring William Ruto the duly elected president, or it could nullify the election and order a rerun or fresh election. Yet there is a minority who think it could hand victory to the petitioner.

The seven judges retreated Friday to make their politically consequential decision after concluding the hearing of a consolidated petition.


Read: Long weekend ahead for Kenya Supreme Court judges

Mr Odinga, the opposition leader who lost his fifth presidential bid by a narrow margin, alleges that the election was stolen and has asked the Supreme Court to either nullify the results announced by the chairman of the electoral commission on August 15 and order a repeat poll or declare him the winner.

His legal team argued in court that there was massive vote rigging, citing certain discrepancies in vote count entries at polling stations and those transmitted electronically to the national tallying centre in Nairobi.

Mr Odinga also claimed that some foreigners, including Venezuelan nationals arrested by Kenyan sleuths in possession of election materials a week to the election, were allowed access to the electoral commission’s system to manipulate results in favour of Dr Ruto.

Read: Role of foreigners in Kenya’s polls plays out

Lawyers representing the president-elect and the electoral commission defended the IEBC and asked the court to uphold the results, terming some of the allegations in the petition “fiction”.

If a majority of the judges dismiss the opposition leader’s grievances and uphold the results declared by the electoral body, Kenyans will have a new president sworn in on September 13 to take over from Uhuru Kenyatta.

Should they invalidate Dr Ruto’s victory and order a repeat election, however, it will not be until November that a new president will take office.

The court created by the country’s reformist 2010 Constitution also arbitrated disputes over the past two presidential elections in 2013 and 2017 and famously overturned President Kenyatta’s re-election victory in 2017.

In case the court grants Mr Odinga’s prayers to have the chairman of the Independent Electoral and Boundaries Commission (IEBC) Wafula Chebukati indicted and barred from conducting a repeat election, the transition could be prolonged even further.

Public confidence in the electoral body has also taken a hit following the recent dramatic public display of internal divisions, which have seen one faction of commissioners disowning the results declared by Mr Chebukati in court.

Read: Judiciary report: IEBC used second set of results forms

Dr Ruto’s lawyers, in their submissions before the Supreme Court judges, alluded to the possibility of a prolonged transition plunging the country into a constitutional crisis, given that President Kenyatta is currently serving his temporary incumbency with limited powers on some key administrative decisions.

But the IEBC is not the only key public institution to emerge from the election dispute at the apex court with its image bruised. Members of the National Security Advisory Council (NSAC), the country’s top security organ chaired by the president, have had to send a lawyer to the Supreme Court hearing to rebut allegations that they tried to pressure Mr Chebukati to declare Mr Odinga the winner.

A number of the NSAC members also serve on the transition committee chaired by the Head of Public Service mandated to facilitate the power handover to a new president. If the results are upheld, they are likely to find themselves in an awkward position discharging their duties after their names were dragged into the Supreme Court case by the legal teams of the president-elect and the IEBC chairman.

Under the rules and traditions of power transitions in Kenya, the committee is, among other things, expected to facilitate communication between the outgoing president and the president-elect and the latter should also be receiving intelligence briefs.

Four dissenting commissioners of the IEBC also want the Supreme Court to nullify the presidential election result on account that they did not meet the requirements of the law. IEBC vice-chair Juliana Cherera and commissioners Justus Nyang’aya, Irene Masit and Francis Wanderi told the court through their lawyers that they were blocked by Chairman Wafula Chebukati from verifying and tallying the results. Senior counsel Paul Muite, the lead lawyer for the four commissioners, accused Mr Chebukati of running the commission as a one-man show.

Read: Kenya poll petition: Court settles row on who IEBC lawyer is

However, DP Ruto, the IEBC and Chebukati’s lawyers held that the agency does not mean the entire team of commissioners, but only the chairperson and technical staff.

Former Attorney-General Prof Githu Muigai, who is leading the electoral agency’s legal team, said the case was all about facts and numbers, yet the petitioners have brought in several other irrelevant claims.

“The petitioners have tried to argue every other point except numbers. The petitions make grave allegations of a criminal nature. All that, without a shred of evidence, especially as it relates to the honourable Chebukati. The vilification of this chairman goes beyond anything we have ever had in this court. It was personal, vindictive. It was unwarranted,” Prof Muigai said.

“When the chairperson declares results, for example, he is the commission. He argues that not all processes of the IEBC require a plenary and voting. The sanctimonious, pompous, self-righteous claims by the petitioners are an afterthought and they should be seen as that.”

Kamau Karori, a senior counsel on Dr Ruto’s team, added that involving all commissioners in tallying and verification would mean that all seven would be required to carry out the same process for other elective positions.

Upon perusing the pleadings, the Supreme Court led by Chief Justice and president of the Supreme Court Martha Koome narrowed down the multiple claims and counter-claims in eight petitions challenging the results of the August 9 presidential election to nine issues, whose outcome will decide whether Ruto’s win will be upheld.

The court will rule on the orders to be granted, which may include nullifying the election and ordering the electoral agency to conduct fresh elections within 60 days, upholding Dr Ruto’s win or cancelling the certificate issued to him and giving it to Mr Odinga as he has requested.

Busia Senator-elect Okiya Omtata has argued that none of the candidates reached the threshold and the declaration made by Mr Chebukati on August 15 is a nullity.

“Therefore, it was wrong for the chairman to have rounded off the percentages for each party to two decimal points,” Mr Omtatah says, adding that by providing that the candidate who gets more than half of all the votes cast wins the presidential election, the Constitution leaves no room for any margin of error.

Based on Mr Odinga’s prayers, the Supreme Court ordered that votes cast in 15 polling stations in different parts of the county should be scrutinised and re-tallied.

Chief Justice Martha Koome, her deputy Philomena Mwilu and Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko on Monday directed that presidential ballot boxes for select polling stations be opened for inspection, scrutiny and recount. The judges also ordered that the error forms signed by IEBC Chairman Chebukati be provided to petitioners Khelef Khalifa, George Osewe, Ruth Mumbi, Grace Kamau, Raila Odinga and Martha Karua.

Strain on social fabric

Prof Fredrick Ogola, a governance expert and lecturer at the Strathmore Business School, said if the court declares a fresh election, President Uhuru Kenyatta moves from incumbency back to full-time presidency as the country prepares for the polls.

In the meantime, there are fears that whichever way the verdict goes there will be a significant strain on the Kenyan social fabric and erode some of the integrity of the country as an epitome of democracy in the region.

A re-run or fresh election would come with its own problem: who oversees the election in 60 days if the IEBC is indicted – and in its present state of internal dysfunctionalism? Does the Court issue a structural interdict where it supervises the elections itself? Will the opposition accept the chair to oversee this even with a court supervision? Would this process itself be give birth to another petition? Can the president run the clock through these cancellations until the term of the IEBC Chair runs out?

A re-run also risks heavy national tensions. Already, the uncertainty has been blamed for the tumbling of the shilling and rising of inflation. Inflation hit 8.5 percent this week — the highest in 62 months — from 8.3 percent in July, on a surge in food and fuel prices. The Kenya shilling continued to weaken, partly on jitters around the presidential election dispute. By August 31, the shilling had fallen 0.03 percent to Ksh120.05 against the US dollar as the apex court began hearing submissions by the petitioners.

Foreign reserves had fallen to $7.6 billion —equivalent to 4.39 months of import cover — during the week ending on August 25, from $7.74 billion, equivalent 4.46 months of import cover, during the week ending July 28.

Activity on the Northern Corridor, though not disrupted, has slowed down as transporters and business people from the Great Lakes region maintain a wait-and-see stance until a solution if sought.