Date: Sunday, 10 September 2017
Praised across Africa as a triumph of judicial independence, the Supreme Court annulling of President Uhuru Kenyatta's victory in last month's presidential election is a double-edged sword. If managed well, the holding of fresh elections under greater scrutiny should add hugely to their credibility, further strengthening the institutions involved, encouraging judges elsewhere to stand up to the executive.
But if the elections are held on an unrealistic timetable without consulting the widest range of politicians and activists, celebrants of the Supreme Court judgement could be cruelly disappointed and judges could quickly lose popular confidence.
Already, Chief Justice David Maraga and his colleagues have been derided by senior figures in the governing Jubilee party, including President Kenyatta. At the same time, some in Raila Odinga's opposition National Super Alliance (Nasa) have been talking up their support for Maraga, making a blatantly opportunist appeal to the Chief Justice's Kisii community.
Should these hyper-partisan responses to Maraga's judgement continue, the possibility of the two main parties working constructively for a fresh and credible presidential election looks remote, especially within the 60-day timeframe stipulated by the Supreme Court.
The Supreme Court has 21 days to publish in full its reasons for annulling the election, which further squeezes the timeframe for substantive change.
In the aftermath of the Court judgement, reactions to it resemble a game of political chicken. The Jubilee government says it accepts the ruling but regards it as a huge waste of money and is confident that it will win overwhelmingly again. It adds that if Odinga and the opposition don't accept the Independent Electoral and Boundaries Commission's rules, they don't have to participate.
The IEBC, apparently under pressure from the government, has named 17 October as the date for fresh elections without consulting any opposition parties. Odinga immediately rejected the new timetable, laying down conditions for his participation in a fresh poll. They include the sacking of several top officials at the IEBC, including Chief Executive Ezra Chiloba and his deputy Betty Nyabuto, and the heads of IT, voter registration and the legal team.
Odinga's campaign chief, the former finance minister Musalia Mudavadi, added demands for a full audit of the commission's IT systems, and scrutiny of its servers and network systems. Stuck in the middle of those demands for scrutiny are the private companies contracted to the commission, France's Safran and the United States' Oracle.
Late on 5 September, the IEBC announced that it had appointed Marjan Hussein Marjan as lead coordinator for the elections and new heads of IT, legal services, logistics, operations, the national tallying centre and training. That looks like an opening gambit in the battle for influence over the next elections. This new team, we hear, will focus on procedural changes in the commission's operations. This is based mainly on the view that the Supreme Court's full judgement will not support the opposition's allegations that IEBC's server was hacked to subtract votes from Odinga and add them to Kenyatta's score via a 'secret algorithm'. Such a conclusion suggests a political conspiracy at the highest level.
This seems to be precluded by the court's statement that it 'found no misconduct on the part of the third respondent, Mr. Uhuru Kenyatta'. Instead, Nasa has targeted its ire on the IEBC for procedural errors and violations of the law in transmitting the results from the 41,000 polling centres to the returning officers and thence to the national tallying centre at Bomas in Nairobi.
Each voter was given six ballots – presidential, senate, parliament, women's representative in parliament, governor, and county legislator. This meant IEBC had to process over 90 million data entries. The tally per candidate (Form 34B) in each polling station was to be electronically relayed to the constituency and national centre. In addition, a hard copy form (Form 34A) signed by all the party agents and presiding officers at the polling stations had to be scanned and then sent online to the constituency returning officer, and copied to the national elections office at Bomas.
At the 290 constituency elections offices, the returning officers aggregated the totals from polling stations to declare the winners at senate, parliamentary and county levels, and also verified and signed the presidential tally in the constituency, which was again forwarded to Bomas in a Form 34B. Following the case brought by Maina Kiai in the Court of Appeal in June which ruled that all results announced at the 290 constituency levels were final, the IEBC's role at national level was reduced merely to that of adding up the results from the constituencies as reported in Form 34Bs, and declaring the presidential results in a Form 34C. The winner is awarded a certificate and the authority organise the inauguration.
At each stage when a form changes hands, signatures are required between originator and recipient. All the forms had a security watermark and a serial number to prevent forgery. The two streams of data from the polling stations upwards – one made up of electronic figures and the other a scanned hardcopy witnessed and signed by all party agents – was to provide a double check on the figures.
The IEBC, which relies on thousands of temporary staff, also has to provide:
(i) the electronically-wired totals form the village-level voting centres;
(ii) certified and accurate hardcopy evidence from all the polling stations in a constituency as summarised in the Form 34B.
Only then, according to the rules, should the IEBC announce the presidential results in a constituency, one by one till the 290th one. That could take weeks. After voting closed on 8 August, the IEBC adding the totals received online for each candidate as they arrived from the 41,000 polling stations without waiting for the hardcopy supporting evidence. These were then streamed live on national TV stations.
The IEBC called the totals 'statistics' because they were not backed up by hard copy results. As the 'statistics' showed a clear and early impregnable lead for Kenyatta – with 54% of the votes against 45% for Odinga, this quickly shaped perceptions about the results.
The judges considered these breaches of procedure in reaching their decision. Also, there were many clerical errors in the forms, missing signatures, and missing serial numbers. The two dissenting judges on the bench of six concluded those errors weren't enough to affect the overall results.
The murder of Christopher Chege Msando, the commission's IT expert, on 29 July, and the lack of a credible investigation into it, may also have played a role in the court's conclusions.
The lack of consensus about what happened stretches from the politicians, through the judges to the civic activists. For example, the Kenya Elections Observer Group – a coalition of Christian churches, Muslims, Hindus, gender-based and local voluntary agencies – gave Kenyatta 54% compared with 45% for Odinga. The findings were based on a professionally-designed sampling frame, they said. But other civic groups such as Africog and Open Society have lambasted the IEBC for ignoring popular concerns, accusing it variously of sins of omission and commission.
It will be extraordinarily difficult to forge a consensus, even over operating procedures and levels of access and scrutiny, across the differing positions on the elections. But without a minimum agreement across the political field, the rival parties could be heading for a constitutional collision – regardless of which candidate wins the rerun.
Should victory again go to Kenyatta, as many pundits predict, Odinga could still appeal to the Supreme Court, buoyed by the standards established in the 1 September ruling. Equally if Odinga were to win, Jubilee would be likely to seek redress in the Court.
With another appeal at the Supreme Court, Kenya could be without a formally-sworn in President and cabinet well into the New Year. Some of Nasa's most militant activists such as party strategist David Ndii and lawyer Maina Kiai talk of 'a revolutionary moment'. Others suggest a secession by Nasa-supporting regions, if they conclude again that their candidate has been cheated of victory.
Such political schisms are unlikely but the economy is coming under growing pressure as uncertainties grow. Within an hour of the Supreme Court ruling on 1 September, the Nairobi stock exchange index fell by 4% and it has continued to decline. The shilling lost 3% against the US dollar immediately, and has weakened further while the yield (interest rate) on the country's Eurobond rose sharply.
Decisions on hold
That comes on top of rising food prices, due to the drought, and a budget deficit of 10.2% which will sharply raise the cost of borrowing for the incoming government. Meanwhile, many of the big economic decisions in areas such as construction, services and tourism are on hold for the duration of this extended electoral season.
The next battles will be at the IEBC. Chairman Wafula Chebukati insists that one of the officials on Nasa's hit list will be fired but add that illegalities are proved the IEBC officials concerned will face trial. Under the constitution, only parliament sack IEBC commissioners and authorise new appointments as a special board. That would take at least three months, say officials. With Nasa threatening mass street protests if its demands aren't met, it may be a matter of who blinks first: Odinga, Kenyatta or the electoral commission.