By Jonathan Stevenson, Senior Fellow for US Defence; Editor of Strategic Comments
Following the December 2007 Kenyan presidential election, in which Mwai Kibaki beat opposition leader Raila Odinga, international election observers confirmed Odinga’s assessment that there had been widespread manipulation and irregularities. After Kibaki’s swearing-in, protesting opposition supporters erupted mainly against the Kikuyu tribe, triggering widespread violence. Over the course of about a month, an estimated 1,300 Kenyans were killed and 600,000 displaced.
On 1 September this year Kenya’s Supreme Court, petitioned by Odinga, nullified the country’s 8 August presidential election, despite international observers’ assessments that the vote appeared clean. The poll had been won by incumbent Uhuru Kenyatta over Odinga with 54% of the vote. But the court declared the election was not transparent and verifiable due to irregularities in recording and transmitting votes, and ordered a new election on 26 October.
Shortly before the election, a senior manager with the Independent Electoral and Boundaries Commission (IEBC) responsible for overseeing the electronic voting system had been tortured and murdered, and an unsuccessful hack of the system had occurred. Protests had arisen, with several dozen reportedly killed. Yet the surprise decision marked the first time an African court had invalidated the election of an incumbent, and hope increased for a free and fair electoral process that would consolidate Kenyan democracy. The Supreme Court no doubt wished to avoid the results of 2007–08. Disruptions probably won’t reach that level, but the threat is real.
Vote exposes tribal divisions
Politically Kenya has been relatively stable, and as such it has been a strategically important and effective – for example, in taking on a leading regional military role in rolling back the Somali jihadist group al-Shabaab, as a key player in the African Union Mission to Somalia. But tribal rivalries have long percolated in the East African country. Kenyatta, like Mibaki, is a member of the Kikuyu, the country’s largest tribe, and the son of Jomo Kenyatta, its first president. Odinga is from the Luo, the second-largest tribe. The 2013 election, which Kenyatta won, was comparatively peaceful. Odinga, however, subsequently expanded and invigorated his political base, and now leads the so-called National Super Alliance.
Odinga has refused to participate in the new election. He claims that the IEBC, which did appoint six new commissioners, has not made sufficient changes in vendors, processes and leadership, and insists that the Supreme Court oversee the process. Meanwhile, the Kenyan parliament, in which Kenyatta’s Jubilee Party holds a majority, has passed laws that appear intended to ensure his victory. Odinga had a point: the Supreme Court singled out the IEBC for the election flaws, and the commission’s process for implementing procedural reforms has been dilatory, though both political camps have also been obstructionist in various ways. Suspicions have also arisen that Odinga is withdrawing in part for tactical reasons, worried that he is running short of money and can’t win without more time to rejuvenate his campaign. The Supreme Court’s decision indicated that if a candidate withdrew, the commission would have to start the process over from scratch. Kenyatta vowed that the election would proceed on 26 October. Violent protests by Odinga supporters have occurred. He has re-affirmed his refusal to participate and encouraged his supporters to boycott the vote.
Legal challenge fails
Civil rights lawyers and activists petitioned the Supreme Court for a delay, arguing that an election on 26 October would not be credible and could be dangerous. The petition drew strong international support, but the Court failed to convene – possibly due to intimidation, as several election commissioners received death threats, and one resigned. Accordingly, the election is proceeding today without Odinga’s name on the ballot. In effect, this means an uncontested victory for Kenyatta. This will be maximally provocative to Odinga’s followers – according to a poll, about three-quarters of Kenyan voters approve of the annulment of the 8 August election. Some disruption, perhaps significant, is likely to occur. One of the petitioners has raised the spectre of Rwanda. It is possible that political fatigue will keep a lid on post-election violence, but Kenya is likely to remain very tense. Early in the election process, violent protests by Odinga supporters prompted the police to respond with water cannon, teargas and live rounds.
Hopes that Kenya’s civil institutions were decisively stepping up, and might assume a stronger supervisory role in the future to minimise the risk of inter-tribal violence in future elections, have now faded. The Supreme Court is unlikely to invalidate a second election. It is still feasible for it to maintain ongoing oversight over the IEBC and ensure that electoral reforms for precluding fraud, including technical methods for counting and transmitting votes, and are fully implemented. International support for the Court will remain important to its retaining some effectiveness and independence. While a reliably fair voting process of course will not end underlying ethnic and political tensions in Kenya, it could appreciably diminish them.