Major hurdles ahead of election rerun
Publish date: 18 September 2017
Issue Number: 743
Diary: IBA Legalbrief Africa
Category: Kenya
Doubts are growing over Kenya's ability to hold a rerun of its presidential election in just one month as key players remain unable to agree on how to conduct a credible vote. Legalbrief reports that there have been several significant developments over the past week which indicate that the chasm between all the key role players is widening. Riots last week broke out in the opposition stronghold of Kisumu city after a rumour spread about alleged efforts to rig the election. Several people were injured as police clashed with youths who blocked roads in the south-western city and threw stones. In another significant development, opposition MPs boycotted the opening of Parliament to protest against President Uhuru Kenyatta's decision to address it after a court annulled his election win. BBC News reports that they say it should not have been convened until after the election rerun slated for 17 October. Kenyatta, however, said he still had the power to convene Parliament. 'The set term of a President is embedded until a new one is sworn in as per the constitution,' he told lawmakers. 'I want to assure every Kenyan and the world that every arm of government is in place and operational,' he added.
Analysts say bickering on all sides and confusion over the process have only increased as the clock ticks down to the fresh vote which was called after the Supreme Court annulled the initial election. A report on the News24 site notes that the opposition has vowed to boycott the election if its list of demands is not met, including staff changes at the electoral commission (IEBC), which it accuses of rigging the poll. ‘The challenges are pretty extraordinary,’ said John Githongo, a prominent anti-corruption campaigner in Kenya. A key hurdle is that the Supreme Court has yet to deliver its full judgment detailing why exactly it decided to annul Kenyatta's victory. Chief Justice David Maraga mentioned only ‘irregularities and illegalities’, notably in the transmission of election results. The court has until Friday to deliver the full ruling, which would give the IEBC little time to make any necessary changes. ‘It is very uncertain,’ said Nic Cheeseman, a professor of African politics at the University of Birmingham in England.
An audit of the electronic system used to tally votes in the cancelled poll showed no manipulation of data, the French biometrics firm that supplied the system has confirmed. Opposition leader Raila Odinga has accused the company, OT-Morpho, of being complicit in alleged rigging of the election. OT-Morpho said an ‘in-depth audit’ of the system showed the opposition's claims about hacking were untrue. The Nation reports that COO Frederic Beylier said the audit, undertaken with help from external experts from security software companies, had shown the system ‘in no way suffered manipulation of data, attacks, attempts to penetrate the system or anything of that kind’. OT-Morpho supplied the 45 000 tablets used to identify voters biometrically and an associated system used to transmit the results of votes counted by electoral officials as well as a photograph of the paper form 34A on which votes were tallied.
Kenya's electoral body must be transformed before the election rerun as its credibility to hold a free and fair vote ‘is seriously questionable’. That’s the view of political analyst Benji Ndolo who told News24 that the IEBC must be ‘sincerely reformed’ before the election rerun to avoid a serious ‘negative impact on the east African country's economy’. Ndolo said that there were a lot of issues at stake if the election rerun was again disputed. ‘Heads must roll. The institution has to be outside of the influence of any outside players. This is why the opposition has moved to have the chairperson moved and held accountable,’ Ndolo is quoted in the report as saying.
Meanwhile, Jubilee MPs and senators are planning to trim the powers of the judiciary following the Supreme Court's ruling which annulled Kenyatta’s poll win. Senate Majority Leader Kipchumba Murkomen confirmed that they will enact laws which will deny the Supreme Court powers to overturn presidential election verdicts. ‘We shall pass laws to protect the decision of the voter to stop some institutions from making decisions that annul the decision of a voter,’ he said. A report on the allAfrica site notes that the senator said the purpose of the law will be to protect the right of citizens where their sovereign right is robbed through ‘legal technicalities’. ‘The law will clarify the foundations of our democracy because the decision of the Supreme Court is unacceptable,’ Murkomen added, according to the report.
Kenyatta says his criticism of the Chief Justice should not be viewed as an attack on Maraga’s Kisii community. The Standard reports that he was addressing a delegation of more than 15 000 members of the Abagusii community at State House. Kenyatta said the Supreme Court decision to nullify his presidential election win was the most painful moment of his life. He said his attack on Maraga and the three judges was justified because he believed the highest court in the land had erred in its ruling. Odinga claimed that the criticism of Maraga – who was part of the panel that nullified the election result – was an attack on his community.
