For the third time in a row, Raila Odinga has challenged the result of Kenya’s presidential elections. The 77-year-old long-time opposition leader has been ridiculed by some as a bad loser, but analysts say his petitions have been crucial in shaping and strengthening the conduct of elections in Kenya, so whatever the Supreme Court decides, this case will help improve subsequent polls.
After polls closed on 9 August, many Kenyans marvelled at how quickly results started populating an online portal run by the electoral commission – a process that had often been beset by controversy and suspect delays in previous polls. By the following morning, 80% of returns from more than 46,000 polling stations across the country had been posted.
It was a remarkable achievement for an agency that had gone into the election with credibility concerns – even if the verification process did not match the speed of the transmission of results, leading to intense public frustration and anxiety, and the current legal challenge.
Glowing in the praise streaming in from Kenya and beyond, the head of the electoral body Wafula Chebukati mocked the local media – whose tallies of the results were running behind – for struggling and not being “prepared” to keep up with the speed at which the agency was posting the results.
Keen to demonstrate transparency, the electoral body had decided to encourage the media and the public to tally the results themselves, instead of giving its own updates on the close presidential race.
The speed and transparency of the publication of the initial results left some in other African countries in awe.
Noting that there was no internet shutdown, arrest of opposition leaders, and no hint that the incumbent was planning to cling on to power, they compared what they perceived as deficiencies in their country’s electoral systems to what they saw happening in Kenya.
“Genuinely, we need to pick a whole tree from the Kenya electoral process because what we have in Uganda doesn’t qualify to be called an election,” Dr Sarah Bireete was quoted as saying in Uganda’s NBS TV station.
“Thank you Kenya for teaching the East African Community what transparent election is. Hopefully Tanzania will borrow a leaf for the next election,” a Tanzanian tweeted.
Kenyan public law scholar Prof Migai Akech told the media the commission did “an excellent job of transmitting results in record time”.
“The process was much more transparent. Even if there are disputes, you just tally the polling stations outcomes.”
The efficiency in the results transmission was not a fluke but a consequence of a case brought by Mr Odinga after he lost the last election alleging massive fraud, including the failure of the electoral commission to transmit all results electronically as required by law, to reduce the risk of them being tampered with.
In a majority ruling, the Supreme Court judges found that “illegalities” and “irregularities” had taken place and therefore annulled the 2017 election and ordered a rerun.
“Essentially the Supreme Court was saying that there was no election. Counting and tallying were not faulty – the problem had to do with the transmission and verification of results. Because of this it constituted a violation of the law,” said Prof Akech.
According to lawyer Omwanza Ombati, who successfully argued to overturn an MP’s election win in 2008 – the first since the reintroduction of multiparty in the early 1990s – although Mr Odinga has a mixed record in terms of his election challenges, he has made “a large contribution to how electoral law is applied in presidential contests”.
And yet Mr Odinga, who has now lost five presidential elections, has been widely mocked online.
“I can’t believe he started rejecting election results before I was born,” one Tweeter said, referring to the 1997 election when Mr Odinga was among opposition leaders to reject then President Daniel Moi’s win.
But Mr Ombati says the various challenges brought by Mr Odinga and others have improved Kenyan democracy in numerous ways, including the procurement of election materials, hiring of electoral staff, and that results at polling stations should be final.
After his 2013 challenge to President Uhuru Kenyatta’s victory was dismissed, Mr Odinga explained why he had no regrets about going to court.
“My decision to file a petition at the Supreme Court to challenge the validity of the election was a statement of my faith in the independence of the judiciary. We did so for the sake of our democracy and for the sake of all Kenyans who wanted to exercise their constitutional right to elect their leaders through free and fair elections.”
He was speaking just five years after the country had imploded after claims that election rigging had cheated him of victory. The inter-ethnic violence killed more than 1,200 people and forced 600,000 others from their homes.
Mr Odinga was also one of the key advocates for a new constitution, which was passed in 2010.
Under the previous constitution, it sometimes took five years – a full political term – to hear a case challenging an election, Mr Ombati said.
While Mr Moi was in power, from 1978-2002, the opposition could not serve him court papers challenging his victories because they were required to do so physically. “That constitution gave special status to the election winner,” Mr Ombati said.
Judges also showed loyalty to Mr Moi – “the law was used as an instrument to serve Moi’s totalitarianism,” he added.
The 2010 constitution created the Supreme Court and an open and expedited process that provides a path for election losers to argue their case.
Mr Odinga’s latest petition against the declaration of William Ruto as president-elect is being seen as yet another opportunity to help address some of the grey areas that have emerged during the conduct of the recent election, Mr Waikwa says.
Although the election was widely praised as being transparent and credible by other electoral agencies, four out of the seven members of the electoral commission have alleged that the latter stages of the results verification process was “opaque”, and accused Mr Chebukati of acting unilaterally to declare results the team had not agreed on.
The dissenting commissioners accused Mr Chebukati of announcing results that were a “mathematical absurdity that defies logic”.
They said that if you added the percentages each candidate received as announced by the chairperson of the commission the sum came to 100.01%.
But Mr Chebukati said this was down to a rounding error and was not suspicious.
The electoral commission chief in turn accused his colleagues of betraying their oath of office and wanting him to “moderate” the results to force a re-run.
After Mr Odinga’s previous case led to an improvement in the transmission process, now the judges must make a ruling to improve the verification stage, which has led to the current dispute, lawyers say.
These are the questions that Mr Waikwa wants the Supreme Court to answer:
- What should the electoral commission do if its verification process finds substantial discrepancies?
- Should the electoral team take a vote on how to resolve these discrepancies and would their action disenfranchise voters?
- Are there distinctive duties for the chairperson of the electoral commission and the commissioners and if so what are they? For example, is declaring presidential results the job of the commission or the chairperson?
- In a very closely contested election, what factors will the Supreme Court take into account in deciding whether to order a fresh election?
In the next 14 days, Kenyans will be treated to the spectacle of the country’s best and brightest lawyers engaging in legal jousting at the Supreme Court, which might rekindle the intense passions felt during the closely fought presidential campaigns.
But it will also be a time to celebrate the culture that has now taken root – challenging elections results in court and not on the streets which has often sparked deadly violence in the past.
“The capacity of Kenya institutions has now outpaced the political culture,” remarked Murithi Mutiga, Africa Director of Crisis Group.
Win or lose, Mr Odinga, who has been imprisoned and tortured for his fight for a better Kenya, is likely, for the third time in a row, to inspire a ruling that will help make elections more credible and transparent – and that is a monumental contribution to the country’s democracy.