NAIROBI, Kenya — Kenya’s historic Supreme Court decision to void President Uhuru Kenyatta’s August 8 reelection victory based on voting irregularities was widely hailed as a testament to the strength and independence of the country’s judiciary. But a deteriorating political situation and uncertainty surrounding recently enacted election reforms is raising concerns about the country’s ability to hold a fair rerun of the vote on Thursday.
Whatever the outcome, the next few days will have a lasting impact on the country and its democracy, said regional analysts.
“For many Kenyans, Kenya is in a battle for its soul,” said political analyst H. Nanjala Nyabola.
The country’s democratic institutions face myriad tests in the coming days, analysts said, none more important than ensuring a free, fair and credible voting and tallying process across the nation.
But the election committee’s resolve is already under strain. Opposition candidate Raila Odinga, in an address to over 2,000 supporters in a downtown Nairobi park on Wednesday, called for a nationwide boycott of the election, casting further doubt as voters in the young democracy head back to the polls.
“There are many people for whom this election is bigger than Odinga and Kenyatta — it’s about what Kenya will look like moving forward.”
Odinga’s latest rallying cry, and the Supreme Court’s failure Wednesday to rule on an election postponement petition, has fueled fears among election monitors and the international community that there will be violence and unrest when the results come in.
Odinga, a member of the Luo tribe, whose voters have long felt marginalized in Kenya, is making his fourth bid for the presidency against incumbent president Uhuru Kenyatta, who is from the powerful Kikuyu tribe. After his 2012 loss, Odinga challenged the results in Kenya’s Supreme Court, but his case was overturned, causing many to question the court’s ability to operate independently of the ruling administration.
“There are many people for whom this election is bigger than Odinga and Kenyatta — it’s about what Kenya will look like moving forward,” said Nyabola. “It’s about whether domestic institutions can break free of individual political actors and define a course of action for themselves independently of politicians.”
The Supreme Court’s historic decision to overturn August’s election results was a victory for Odinga supporters and a major milestone in a country with a history of violent and disputed presidential elections, including in 2007, when tribal-based violence and police brutality left over 1,200 dead and 500,000 more displaced.
“One of the major tests was whether the judiciary could make decisions without the influence of politicians, and I think they proved that in their September decision,” said a Kenyan human rights expert, who asked to remain anonymous out of concern for his safety and that of his organization.
But the no-show of seven out of nine Supreme Court judges to rule on a last-minute petition for postponement allowed the election to move forward and cast doubt on the judiciary’s independence, prompting the EU election observation mission to voice concern about the future of the rule of law in Kenya.
And whether the Independent Electoral and Boundaries Commission (IEBC), the body tasked with credible elections, can successfully implement the election reforms it committed to in response to the Supreme Court’s ruling by Thursday’s vote remains to be seen.
Recent news surrounding the IEBC doesn’t inspire much confidence, however. Last week, senior election official Roselyn Akombe fled to the United States citing safety and security concerns. Then Ezra Chiloba, the commission’s CEO, announced he was taking a three-week leave of absence to spend time with his young son. And the commission’s chairman, Wafula Chebukati, has since expressed concern over the body’s ability to oversee a credible election.
This turmoil follows Mr. Odinga’s October 10 announcement that he would not be participating in Thursday’s election because the IEBC rejected his demands for reform.
“We’re not afraid of elections as long as they’re free and fair, but we will not participate in a coronation,” Dr. Noah Akala, deputy director of Campaigns and Elections of the Orange Democratic Movement Party (ODM), a member of the NASA coalition, told VICE News.
In response, President Kenyatta’s Jubilee Party has petitioned the Supreme Court to issue a contempt of court citation to Odinga for trying to compromise a constitutionally mandated election, and pushed legislation through Parliament that it hopes will tip the scales in its favor.
“I don’t think it was the intention of the Constitution that one tribal king can mobilize members of his tribe…to blackmail the rest of the country,” the Right Honorable Rafael Tuju, Jubilee Party secretary-general, told VICE News.
“If we don’t do those elections as required by the high court and the Constitution, then we’ll be getting into a post-Constitution era,” Tuju continued. “And if you get into a post-Constitution era, then it gives all politicians an excuse to sit in back rooms and decide which way the country should go.”
“There’s no savior in Kenya”
Odinga’s end game remains unclear to both voters and analysts who are watching his every move closely. Some believe he hopes to cause enough unrest and low turnout across the nation that it would invalidate the vote through another eventual Supreme Court ruling. Others believe the NASA coalition is seeking to delegitimize and destabilize the Jubilee government until they offer a power-sharing agreement, a possibility that seems unlikely given public comments from both parties.
The confusion and uncertainty has garnered mixed responses among Kenyan voters, many of whom are tiring of tactics that they feel put politics before the well-being of citizens.
“There’s no savior in Kenya,” said 26-year-old Ivan Kamau-Smith, a student in Nairobi. “I’ve always tried to vote on the basis of the lesser of two evils.”
Yet some Kenyans believe this election created an opportunity for Kenya to strengthen its young democracy.
“There is much to celebrate, even if it doesn’t seem that way in the shadow of rising tensions,” said Nyabola. “The public is far more informed and engaged than it has been in the past. People are coming out strong to defend the independence of the judiciary. There’s a tenacity in the way civil society is fighting that has been missing in Kenya for some time.”
Nyabola followed her silver lining with one very big caveat: “But again, this all depends on how the two main political parties behave over the next few days.”
Neha Wadekar is a multimedia journalist based in Nairobi and reporting across Africa.