On the eve of reelection day, Kenya's courts thrust into limelight

Kenya will proceed with a rerun of its August presidential election on Thursday, after too few Supreme Court justices showed up to hear an appeal – putting a spotlight on the courts' important, sometimes unprecedented, role in the election saga.

When Kenyan chief justice David Maraga entered his courtroom Wednesday morning, on the eve of a hotly disputed presidential election here, the whole country seemed to be listening.

After all, what he said next would make political history – and not for the first time.  

Seven weeks earlier, Kenya’s Supreme Court had struck down the results of the country’s August presidential election and ordered it rerun after the opposition claimed the vote counting was rigged – the only time an African court had ever done that, and just the fourth time it had happened in the entire world.

And now, Chief Justice Maraga was going to tell Kenyans whether the new election could go forward on Thursday – or if it should be delayed again to give the country more time to avoid the mistakes of the first vote, as a petition had argued.

But like so much of Kenya’s dramatic election season so far, the justice’s speech did not go according to script.

Instead of coming down on one side or the other, he sheepishly announced that his court had not actually heard the case at all – meaning the election redo would go ahead as planned.

Why? Because only two of the country’s seven Supreme Court justices had shown up to work that day, and that wasn’t enough for a vote. 

The announcement was emblematic of an election season marred by uncertainty about the political process, which has raised concerns about the health of one of Africa’s most strongly established democracies.

Since early August, the country has seen a presidential vote go off seemingly uneventfully, only to be abruptly undone by the courts a few weeks later. A top election official has been murdered and another has fled the country, saying she fears for her life. Meanwhile, opposition leader Raila Odinga announced earlier this month that he was pulling out of the new race, claiming the election authorities had made none of the reforms needed to ensure the repeat vote was fairer than the first one. (The chair of the country’s electoral commission, Wafula Chebukati, seemed to echo his sentiment, admitting it would be “difficult to guarantee free, fair and credible elections” in the current circumstances.)

But Maraga’s announcement also epitomized the complicated and at times unprecedented role that Kenya’s courts have played in this year’s vote – and the depth of the challenge that has presented to the country’s political order.

“The judiciary has always been the weakest of our three branches of government,” says Nanjala Nyabola, a Kenyan writer and political analyst. “These last couple months are the first time the judiciary has really made its presence felt in 30-odd years, and struck out on their own in a way that’s not influenced by the executive or the legislature.”

'Murky waters'

But that newfound independence already seemed wobbly Wednesday, when the majority of judges failed to show up in court. Some Kenyans argued that the judges, thrust into the political limelight, had simply been pushed too far. One of the justices who failed to turn up did so after her driver was shot Tuesday evening in a suspected political hit. And many here speculated that the reasons the other justices hadn’t showed up were also deeply political – that they did not want to cast the deciding vote, or were afraid of the political consequences of ruling in favor of one side or the other.

“The judiciary has stood up … but they continue to threaten our judges,” opposition leader Mr. Odinga told supporters at a rally in central Nairobi Wednesday afternoon, referring to his opponent, sitting President Uhuru Kenyatta, and his supporters. “They have no respect for the rule of law.”

Not everyone has been so clear on the value of the court’s new role. The judiciary’s assertiveness “has plunged us into murky waters,” says Faith Kiboro, a political analyst and PhD candidate at SMC University in Switzerland who studies democratization in eastern Africa. While many Kenyans are happy to see their courts acting independently, she says, others feel they have gone too far. Judges have issued more narrow challenges to the country’s election results before, but never annulled an entire election – or had to deal with the ensuing confusion. 

By ordering a new election, for instance, the Supreme Court here seems to have opened the legal floodgates for disgruntled defeated political hopefuls. Nationwide, more than 100 petitions were filed challenging the results of gubernatorial, parliamentary, and local races.

And at least ten challenges to the validity of Thursday’s vote have come before Kenyan courts in recent days – including the case to delay the election. (Another of those cases found that the appointment of several electoral commission officers had been illegal, a ruling that experts say all but ensures there will be another legal challenge to the validity of the vote by the opposition after Thursday’s poll.)

“It’s a mockery,” says Nairobi taxi driver James Njoro. “The courts have become the worst enemy of the people.”

Buoyed confidence

But for many Kenyans, the new role of their courts is a welcome one. 

After the country’s sitting president, Mr. Kenyatta, was declared the winner of the August poll, protests erupted in opposition strongholds across the country. Police reaction was swift and heavy-handed. At least 33 people were killed by police in the days following the election, according to a report by Amnesty International and Human Rights Watch, and hundreds more were injured. The political mood turned sour. Odinga promised his supporters they would “remove” the Kenyatta government.

Three weeks later, however, the Supreme Court nullified the original election result, siding with Odinga in his claim that the electronic transmission of votes had been tampered with. 

“And it just threw cold water on that conversation about violence,” Ms. Nyabola says. “People who had been protesting suddenly felt like they could be a part of this country and be listened to – it changed something fundamental for many of them about their relationship to the state.”

And that shift, she says, will have implications long beyond the tumult of the current election.

For many Kenyans, after all, the courts are the branch of government with which they have the most intimate contact – the place where they go to settle small legal disputes over land, family, or money. The country’s new trust in the independence of the Supreme Court could trickle down to the rest of the judiciary, she says.

All eyes on rerun

But the courts’ central role in this election also means that a challenge to Thursday’s result is almost a foregone conclusion, Ms. Kiboro says. 

In a rally in central Nairobi Wednesday afternoon, Odinga officially called on his supporters to boycott the vote Thursday.

“They want to transform our country into a dictatorship,” he said. “We will not accept it. We will not be moved.”

For many Kenyans, the way the election rerun has disintegrated is deeply disheartening. 

“I fear tomorrow's election could jeopardize peace … Can't we wait?” says Ahmed Omarr, a trader in Nairobi. “I am disappointed in [the electoral commission], the incumbent president, and the opposition for their failure to talk to each other.”

But Nyabola sees at least one silver lining to the messiness of the recent political process.

“I have never seen this level of political consciousness in Kenya before,” she says. “People are talking about the constitution in the bars, in the matatus” – public mini-buses.

“We’ve all become amateur constitutional scholars and I think that’s a good thing.”