Supreme Court ruling signals new order for Kenyan politics
Saturday August 27 2022
The political uncertainty over Kenya’s fourth consecutive disputed presidential election outcome has shattered outgoing President Uhuru Kenyatta’s hopes of breaking the cycle of divisive polls.
Supreme Court judges are in the coming days expected to hear and rule on petitions challenging Deputy President William Ruto’s slim victory in the August 9 election that has once again left the public divided right down the middle and rival politicians’ grievance-mongering.
Read: Senior counsel showdown: Top legal minds face off in Kenya presidential poll petition
Opposition leader Raila Odinga, who together with his running mate Martha Karua, has filed one of the petitions, alleges that his victory was stolen. Meanwhile President-elect Ruto’s allies continue to promote conspiracy theories about a power-grab attempt underway.
An uneasy calm has prevailed in the country in the run-up to the Supreme Court hearing, much like what happened in 2013 and 2017 when the apex court judges were also sought to settle presidential election disputes.
But this year’s court battle appears to evoke greater angst in the President-elect’s camp after the unprecedented decision that nullified the results of the last election and ordered a rerun within 60 days.
A number of Dr Ruto’s allies have in recent days targeted President Kenyatta with conspiratorial rhetoric seeking to link him with the Supreme Court petition and pressure him to publicly acknowledge the former’s victory.
Also read: Explainer: What you need to know about Kenya's election battle in Supreme Court
The President, who endorsed and campaigned for Mr Odinga as his preferred successor, has yet to publicly congratulate Dr Ruto.
Whichever way the court rules, it is likely to leave the country polarised even further, with one segment of the population celebrating victory and the other crying about electoral justice.
For President Kenyatta, it will mark a double loss, seeing his succession plan and a key pillar of his legacy agenda fail.
After the political tensions arising from the 2017 elections, he surprisingly called a truce with his bitter rival Mr Odinga in March 2018, promising to change the winner-takes-all system in Kenya’s politics, cure the malaise of divisive elections and spare the country the seasonal disruption of economic activities.
“Every five years, the country almost comes to a standstill during elections. Investment and economic activity slow, making Kenyans lose their sources of livelihood. Political competition often escalates beyond vibrant debate into ethnic polarisation. Personal security becomes uncertain, and often there is violence.
Also read: Explainer: What next after William Ruto-Raila Odinga Kenya election results stalemate
“Kenyans need to overcome this negative cycle by acting on the understanding that elections independently are not the solution to our national challenges,” said a document prepared by a team of experts appointed to advise on reforms around the Uhuru-Raila cooperation deal.
Since 1992, economic activity has slowed down 2.83 percent on average during election years. In 2017, economic growth slowed down to 3.82 percent from 4.21 percent the year before, while in 2013 it decelerated to 3.8 percent from 4.57 percent.
The 2007 post-election violence saw growth shrink to 0.23 percent in 2008, from 6.85 percent.
Signs that President Kenyatta might not be granted his election legacy wish were already clear over the 10 months to March this year when the courts blocked the proposed constitutional referendum.
A ‘Yes’ vote for the proposed referendum, popular as the Building Bridges Initiative, would have expanded the government structure to accommodate more of the country’s ethnic elite in power at any given time.
Also read: How Kenya presidential petitions have changed the polls agency
Now, a Supreme Court battle after another divisive election looks set to bury President Kenyatta’s legacy ambition.
But then Kenya’s democracy – and society – is at its most fragile stage, with tensions and contradictions that provide a powder keg, and which only need a minor trigger. The spectre of instability and violence is ever so real.
A political and diplomacy scholar who requested anonymity to speak freely, as he works with various State and non-State institutions, observed that the country is evenly split numerically between the two leading candidates. But, geographically, it is at a disequilibrium, with the losing candidate commanding control over vast portions of the country’s spatial map and the winning candidate having a thin reach.
“In Kenya, this has led to the co-ethnic presidency since Independence, and has occasionally triggered conversations about the inadequacy of a presidential system. The proposal for a parliamentary system has never run its full course,” the scholar said.
Observers note the pledge by Dr Ruto’s United Democratic Alliance to establish a commission on State capture to investigate the First Family poses real and immediate danger, with the incumbent feeling genuinely threatened.
Also read: Ruto faces tough battle to push agenda in Parliament
The danger becomes even more apparent if one considers that, unlike Jacob Zuma in South Africa, President Kenyatta has lost his political base in the Mt Kenya region, leaving him feeling exposed and vulnerable.
With his personal liberty and family resources threatened, the president may feel the need to go flat out to secure an outcome that is friendlier to him.
The Court may uphold the IEBC verdict and make it harder for Mr Kenyatta to cling onto power, even though he may feel buoyed by the country’s even split. It would take interventions of the international community to extract concessions from the President-elect not to go after him in retirement. But this would be difficult because it would constitute the first “betrayal” by Dr Ruto to his supporters on the promises he made, and on whose basis he secured their vote.
The international community also has no leverage on the incumbent.
The Supreme Court may nullify the election and order a re-run. This has its own problem: Who would oversee the election in 60 days considering the IEBC indictment and in its present state of internal dysfunctionalism?
Also read: Top legal minds face off in Kenya presidential poll petition
Does the Court supervise the election itself? Would the opposition accept the current chair to oversee this even with court supervision?
Could this process birth another petition that would extend the tenure of Mr Kenyatta by another 72 days (if this second election were cancelled)?
Might Kenyatta run the clock through these cancellations until the term of IEBC chair Wafula Chebukati runs out in January?
Risks in re-run
Experts say a re-run risks heavy national tensions. The incumbent would use everything at his disposal to try and achieve a favourable outcome. But it may not be an election in an ordinary sense, which would create a legitimacy crisis for the winner. It is likely to be a violent and vile contest.
Also read: How power, politics and law shaped Kenyan rule
The Court may declare the petitioner the winner. Again, regardless of the merit, say legal experts, the one half of the country that currently holds victory would feel robbed, however meritorious the declaration may be. This may trigger despondency.
“Each of these scenarios may create conditions for a revolution,” said the scholar.