A First for Kenya and for Africa

Today, Kenya’s Supreme Court annulled Kenya’s presidential election results, mandating fresh elections in the next 60 days. No court on the continent has ever done such a thing. It is truly a milestone for judicial independence in Africa. The NYT:

The Supreme Court, which has bolstered its independence in recent years but had been — at least until now — viewed by many Kenyans as under government influence, was facing pressure to set out arguments that would persuade people on both sides, said Dickson Omondi, a country director for the National Democratic Institute.



The court case was an opportunity for the judiciary to truly show its independence, Mr. Omondi said, after it came under intense criticism for its mishandling of a similar petition by Mr. Odinga in 2013, which the presiding judge alluded to on Friday at the start of his remarks.



Most African courts feel pressure from leaders, Mr. Omondi said, so “It’s a historic moment showing the fortitude and courage of the Kenyan judiciary.” He also applauded other figures and groups involved — Mr. Kenyatta and the electoral commission — for appearing to have accepted the judges’ decision, and said the ruling could influence similar cases elsewhere in Africa.

“We believe in the rule of law,” said Kenyatta, accepting the decision.

“Official” results showed incumbent Presdient Uhuru Kenyatta triumphing last month over perennial opposition challenger Raila Odinga, this according to Kenya’s Independent Electoral and Boundaries Commission (IEBC)—and affirmed by independent election observers like the Carter Center. But University of Michigan professor Walter Mebane ran a statistical analysis of the results, estimating that at least 500,000 of Kenyatta’s votes were fraudulent.

Then there’s the murky matter of IEBC electronic director Chris Msando’s grisly murder mere days before the election, which the opposition seized upon in the waning days of the campaign as evidence that the elections would be rigged electronically. And it was electronic tallying, not voter intimidation or ballot-stuffing, that the Supreme Court highlighted in its ruling today. Kenyatta was declared the winner before scanned copies of official tally forms were uploaded online. It took more than 10 days for the forms to be uploaded, and even then many of them lacked the appropriate stamps, signatures, and watermarks. Some showed surprisingly high turnout (100 percent in places) and curiously monolithic support for Kenyatta.* These electronic irregularities are what led the Kenyan Supreme Court to declare the elections “invalid, null, and void.”

Ty McCormick, writing in Foreign Policy, highlights the role of external election observers in validating the now-voided election results:

Former Secretary of State John Kerry, who led the Carter Center’s observer mission, congratulated the electoral commission on the “extraordinary job” it did “to ensure that Kenya has a free, fair and credible poll.”



The Carter Center did not immediately respond to requests for comment.



“They are going to have to wipe a huge amount of egg off their faces,” John Githongo, an anti-corruption campaigner and former head of Kenya’s anti-corruption commission, said of the international observer missions. “People here are really feeling very hurt and cheated by the international observers. They did a very sloppy job. There’s a feeling that these guys came on holiday here and signed off on something that they should not have.”

Jimmy Carter and John Kerry have some explaining to do. Who’s wrong, Kenya’s highest court, or foreign election monitors? And how much did fears of election-related violence play into the observers’ decision to brand the elections as “free and fair” when some on the observation teams may have had significant reservations? Did American favoritism for Kenyatta, who is seen to be more cooperative on business and security cooperation with the United States, play any role in the enthusiasm with which American observers approved the results?

The next 90 days will be extraordinarily messy. It is unclear that any elections body, whether existing or new, will have the capacity to run elections to the standards demanded by the Kenyan Supreme Court. An already bitter campaign will seethe with fresh vitriol. Elections observers will redeploy, hopefully with a keener eye for scrutiny. After 60 days, Kenyans will vote once more. And in the tenuous 30 days after, we will see how Kenyatta, Odinga, and the Supreme Court respond to the new election results.

Today’s ruling raises many questions. If the elections are again marred by fraud, will the Supreme Court dutifully scrap them a second time? Will international election observers speak up? If Kenyatta loses, will he step down? If Odinga loses, will he concede? Will Kenya’s Supreme Court maintain its newfound independence, or will future presidents learn the lesson to stack it with loyal supporters? Only time will tell how Kenya answers these questions.

* To learn more about the irregularities in greater detail, read Helen Epstein’s gripping essay “Kenya: The Election and the Cover-Up” in The New York Review of Books.

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