KENYA’S Supreme Court has been widely - and rightly - hailed for its bold, historic and unprecedented decision last week to annul the 8 August election victory of President Uhuru Kenyatta.
As far as can be established, this is the first time an African court has upheld a challenge to an incumbent victory in an election. But the court has also set Kenya up for an even more fraught rerun election on 17 October than the last one.
Both main candidates, Kenyatta and his rival Raila Odinga, are more convinced than ever that they were the rightful winners of last month’s contest - and are therefore even less likely to concede defeat.
The Supreme Court gave the Independent Electoral and Boundaries Commission (IEBC) 60 days to hold the rerun. That was already too tight a schedule, practically speaking. But the IEBC then announced this week that the elections would be held on 17 October - even sooner than the deadline.
However Odinga vowed on Tuesday that he wouldn’t participate in the poll unless he was given ‘legal and constitutional’ guarantees. These include the removal of some IEBC officials. He wants them to be criminally charged.
Last Friday when the Supreme Court annulled the election, it laid the blame squarely on the IEBC, saying it hadn’t conducted the 8 August poll in line with the constitution and the electoral laws. It also said the IEBC had perpetrated ‘irregularities and illegalities’ in transmitting the voting figures from polling stations to central tallying centres.
The court said it would publish the full reasons for its decisions within 21 days. Never before has an African court upheld a challenge to an incumbent victory in an election Since the IEBC was held responsible for the 8 August failure, Odinga is surely right to question how an unchanged IEBC could be expected to do a better job on 17 October.
‘You cannot do a mistake twice and expect to get different results,’ he told journalists in Nairobi. Kenyatta and his Jubilee party and electoral coalition, though, have rejected any changes to the IEBC.
Grant Masterson, an election expert at the Electoral Institute for Sustainable Democracy in Africa who observed the 8 August elections, said, ‘The IEBC does face a really stiff task to meet the con stitutional and legal requirements the court expects them to meet, by 17 October.’
Nic Cheeseman, professor of democracy and international development at the University of Birmingham in the UK, was also surprised by the IEBC’s decision to squeeze the timetable even tighter than the 60 days it had, ‘especially as we don’t know the Supreme Court’s findings yet’.
These could have a bearing on the IEBC’s fitness to conduct the 17 October rerun as they might suggest necessary changes to the IEBC. Peter Aling’o, a Nairobibased senior research consultant for the Institute for Security Studies, believed the IEBC’s reason for calling the election on 17 October was to avoid clashing with school exams.
He said the National Super Alliance (NASA) had identified a commissioner in charge of information, communication and technology at the IEBC, and a couple of IEBC Secretariat staff including the chief executive officer, whom it claimed were accomplices in the irregularities and illegalities.
He said the IEBC chairman had indicated that the commission would do some internal restructuring ahead of the repeat polls, and already there were suggestions that a number of IEBC Secretariat staff, including the chief executive, could be sent on ‘compulsory leave’.
Aling’o felt the IEBC could have handled the situation better by initiating talks with both parties from the start, to forestall a possible political and constitutional crisis.
Odinga is surely right to question how an unchanged IEBC could be expected to do better Cheeseman, like others, believed that given the short time available and thus the impossibility of totally reforming the IEBC by then, the leaders of the opposing coalitions would have to get together themselves to find a political solution.
They would then have to agree on what could and couldn’t be done by 17 October to improve the electoral body.