The Kenya Supreme Court last week nullified the national elections held in August that had, according to the country’s national election commission, seemingly led to the re-election of President Uhuru Kenyatta with a surprisingly high 54 percent of the vote. The election had been challenged by veteran opposition leader Raila Odinga who cited numerous inconsistencies in the way the vote was handled and tallied, describing the results as a “massive and extensive fraud”.
The court has ruled that the election has to be redone within 60 days.
The nullification of a national election would be an extraordinary event anywhere in the world. It is a first for Africa. The repudiation of an election commission and of a sitting president demonstrates the strength of the Kenyan judiciary. Equally impressive was the immediate acceptance by President Kenyatta of the court’s decision; less so his subsequent attacks on the judges involved as ‘wakora’ or crooks.
Odinga has said that the ruling represents “an end to business as usual” and “is precedent setting, not only for Kenya, but for the rest of Africa and the developing world.”
This election nullification is the most important democratic moment in Africa since the first non-racial elections in South Africa in 1994.
Overturning the election also provides a stark counterpoint to trends across Africa, and the world, in favor of creeping authoritarianism. Freedom has been on the decline in Africa, partially because authoritarians have adopted a set of practices including subtle cheating, manipulation of social media, intimidating local institutions, and playing foreign observers that have rendered many elections as essentially unfair. For instance, the Zambian constitutional court refused to hear the opposition’s case in a disputed election 12 months ago, where the incumbent finished over the threshold by just a few thousand votes in 3.8 million. The court postponed the hearing, and then decided that the appeal was out of time, and did not even consider the case.
Zambia’s opposition leader, Hakainde Hichilema, himself recently released after four months detention, observed that the Kenyan court’s decision is “a victory for democracy across Africa. No longer can incumbents act with impunity, and foreign election observers simply rubber stamp results as they have routinely done.”
The Kenya case also provides some important lessons that there are no quick fixes for democracy and no substitute for strong institutions. For instance, donors had spent millions of dollars on an elaborate set of technologies to transmit local election results to the national counting headquarters. However, the electoral commission could not, after the fact, document the vote and it appears that at least some had figured out how to circumvent the system. That a senior election official had been kidnapped, tortured and murdered only a few days before the election added to the likelihood that the machines had been compromised. Good electoral technology is always important but no one should believe that the machines by themselves guarantee a fair vote.
The extremely problematic role of international observers is also on full display. The many foreign observers of the Kenyan elections, including the Carter Center and former US Secretary of State John Kerry, had urged Odinga to accept defeat and said that they had found no evidence of “centralized manipulation.” Kerry, in fact, had urged Odinga “to move on.” The problem with observers is that most arrive too late to review much of the campaigning before election day, leave too soon once the results start coming in, and are too afraid to conclude the obvious irregularities lead to unfair elections. In the Kenya election, it was only clear after a thorough review of the results, long after the foreign observers had made their pronouncements and flown, that something was seriously amiss.
Foreigner observers cannot substitute for strong domestic institutions, including an active civil society, and a thorough review of their role is clearly overdue. “Observer teams,” notes SA’s own opposition leader Mmusi Maimaine, “must ensure their role is not simply to tick boxes, but to strengthen institutional accountability and constitutionalism.”
Kenya still faces many problems and the prospect of rerunning the elections in just two months raises a host of logistical and political issues in an extremely fraught environment. There is always the possibility of violence, especially since approximately 1,200 people were killed after disputed elections in 2007.
Yet, the courage and strength of the court’s decision has huge positive implications for Kenya’s future. In addition, those who feel cheated at the election box across Africa, and perhaps the world, will now have a new, credible avenue open to them instead of opting for violence to enforce the people’s will.
Greg Mills is director of the Johannesburg-based Brenthurst Foundation. Jeffrey Herbst serves on the Foundation’s Advisory Board.
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