Jeremiah Ogonda Asaka | Middle Tennessee State University
Kenya’s 2017 general election has been one of the most litigated general elections since the country’s first multiparty poll in 1992.
Just weeks before Election Day the country’s Independent Electoral and Boundaries Commission (IEBC) was still embroiled in court battles. In fact, days before the vote, it appeared in court at least twice.
In the first instance Kenya’s main opposition coalition – the National Super Alliance – alongside the Thirdway Alliance Party of Kenya challenged IEBC’s award of a ballot printing tender to Al Ghurair – a Dubai based firm.
The High Court of Kenya ruled for the plaintiffs effectively barring Al-Ghurair from printing the presidential ballot papers.
In its second appearance IEBC appealed the High Court ruling. This time the decision went its way. The Court of Appeal reversed the the lower court’s decision arguing that the election commission didn’t have time to find a new printer. The appeal’s court also ruled that the lower court should have barred Al-Ghurair from printing ballot papers for all elective seats and not just the presidential one.
After the second ruling, IEBC had the green light to print the ballot papers and conduct the general elections. Infamously, the presidential result was then invalidated by the Supreme Court triggering a fresh election slated for October 17, 2017.
The Supreme Court ruling was not just a victory for Kenyan democracy but for democracy everywhere. It underscored the independence of the judiciary, strength of public institutions, and Kenya’s deepening commitment to the rule of law. These lessons go well beyond Africa.
But despite the court’s decision, there are those who still maintain that President Uhuru Kenyatta won the election. The president himself was confident that he had garnered the most votes and he blasted the courtfor usurping the will of the Kenyan people, swearing to fix the problemin the Judiciary if he won the fresh election. His words were broadly interpreted as a direct attack on the judiciary.
Role of election observers questioned
Kenyatta’s remarks are at worst a direct attack on the judiciary and at best an indication that the Executive will interfere with judicial independence. That is a threat that Kenyan will have to contend with at home.
On the international stage, election observers are also facing a threat to their continued existence. The role and effectiveness of international election observation has been called into question after more than 400 observers gave the Kenyan election a clean bill of health. The Supreme Court decision has put them in a tight spot.
The Carter Center which sponsored the John Kerry-led observation team has praised the court decision as “both important and encouraging, because it highlights the independence of the Kenyan judiciary”, while trying to distance itself from any wrongdoing.
Media pundits across the continent and beyond have weighed in on the future of international election observation, some of them calling observer missions out for their formulaic rubber stamping of results. Whichever way one looks at it, the Supreme Court judgment is a stinging indictment on the international election observation enterprise.
Moving forward, election observer missions should address themselves to two key issues if they are to regain credibility. First, they must approach elections as a process rather than an event. In this way observer missions will be able to stagger their reporting to reflect the various phases of the electoral process.
In the Kenyan case for instance, observer mission would be expected to report separately on their findings. They would start by observing voter registration, voting, vote counting and tallying, before reporting on results transmission and verification process, and the announcement of results. A comprehensive report of findings would be made available once the election was over.
Second, observers must contend with the new African election reality that includes a strong information, communication and technology component. It is foolish to observe an electronic electoral process using the same approaches that were used to observe manual election.
Further compounding this issue for the observation industry is the fact that a number of African elections are now hybrids that integrate electronic and manual aspects. This is something that election observer missions must quickly come to terms with in order to update their mode of operation.
Next steps for Kenya
Kenya’s 2017 general election court rulings are significant in two ways. First, they highlight the functioning nature of Kenya’s democracy, which includes checks and balances. In this respect, the Judiciary has emerged as a strong, independent democratic institution. Second, the Supreme Court has to a large extent restored Kenyans’ confidence in their country’s judicial system.
Interesting times lie ahead for Kenya as it prepares for a fresh presidential poll now slated for October 17, 2017. The opposition alliance led by Raila Odinga has already demanded for the reconstitution of IEBCbefore the October poll.
On their part, Kenyatta, his deputy William Ruto and their Jubilee Party have vowed to ensure that the IEBC conducts the fresh poll as presently constituted. As things stand, Kenya still has a long road to travel before the current election dispute is resolved.
That notwithstanding, Kenyans have a date with destiny. The Supreme Court ruling has granted Kenyans another opportunity to decide the path their country will take. It is now anyone’s guess what the result of a fresh election will be. One thing is certain, though, the October 17 presidential election will have long lasting ramifications for Kenya’s maturing democracy.
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This article was first published in The Conversation.

Op-Ed: How will the Supreme Court’s historic ruling impact the country’s democracy

The president calls the chief justice a cheat. A lawmaker denounces the head of the opposition as the devil and says he needs a whipping. The opposition leader accuses the president of making a public speech while drunk.
The gloves are off as Kenya’s ruling party and the opposition battle for votes ahead of new elections, tentatively scheduled for Oct. 17 by the Supreme Court after it voided last month’s presidential results.
Last Friday’s historic decision, the first of its kind in Africa, was welcomed by many as a rare sign of independence from Kenya’s judiciary. It means voters will again have to choose between President Uhuru Kenyatta, 55, and veteran opposition leader Raila Odinga, 72.
But others feared that after a relatively peaceful election campaign, it could open the door to political instability, reviving memories of the violence that followed a disputed 2007 election when more than 1,200 people died.
Despite being prone to occasional unrest, Kenya is viewed by the United States and other allies as an anchor of stability in the region. East Africa’s richest country per capita and main trade route between the coast and the interior, it has avoided the civil wars that for decades plagued neighbours such as Somalia, South Sudan and Uganda.
“After the verdict by the Supreme Court &#8230; I‘m worried about the upsurge of hate discussion amongst Kenyans,” said Francis Ole Kaparo, the chair of the National Cohesion and Integration Commission, the government body in charge of preventing hate speech.
“As of yesterday morning we were investigating 273 cases of hate-mongering in the social media. I believe the number has probably doubled as we are sitting here,” he told a press conference.
They had less than a third of that number for the whole ten-week campaign period leading up to Aug. 8 elections, he said.
Lawmakers from both sides are under investigation. Opposition lawmaker Paul Ongili Owino, whose Twitter account suspended, is among them. Kaparo did not respond to a message seeking more details.
So is ruling party lawmaker Moses Kuria, who gave a fiery speech on Tuesday denouncing Odinga. Kuria is already facing hate speech charges brought by the commission more than a year ago.
<h3 data-reactid="55">FIERY SPEECHES</h3>
“Raila is a demon. He needs to be whipped by a man and whipped by a woman. Support us, including all parliamentarians, so we can hold him,” Kuria told cheering crowd in a speech in the Kikuyu language peppered with coarse words in Kiambu county on the outskirts of the capital.
“We went and gave birth to a baby (the election). That baby did not die during pregnancy or during delivery. The baby had started to suckle. Raila then came and stuck his finger in the baby’s arse and killed it,” he said during the speech, which was filmed and posted on YouTube.
Later, he posted on his Facebook page, “Manhunt is on tonight for the 200,000 people who did not vote and the 70,000 that voted for that other demon.”
The biggest worry in Kenya is violence taking on an ethnic dimension, as in 2007. President Kenyatta is from the largest of Kenya’s 44 tribes, the Kikuyu, while many of Odinga’s supporters believe his Luo ethnic group has been locked out of power.
Police denied reports, which were posted online and repeated by opposition politicians, that following Kuria’s speech buses had been stopped in the area and passengers questioned about their ethnicity. Reuters was unable to verify the accuracy of those reports.
Raphael Tuju, the secretary-general of the ruling Jubilee party, denounced Kuria’s speech to a local news channel hours after it was reported.
“That is completely out of order and I would not accept that kind of language. I will take it up with him because it is unacceptable,” he said. Tuju did not return calls from Reuters seeking comment on what disciplinary action Kuria might face.
Manoah Esipisu, a presidential spokesman, said “State House does not comment on comments by people like Moses Kuria.”
<h3 data-reactid="64">WAR OF WORDS</h3>
Kuria’s speech came days after Kenyatta repeatedly criticised the Supreme Court for nullifying the August election results.
Official results showed that Kenyatta had won by a comfortable margin of 1.4 million votes, but the court ordered the poll re-run because it said there were “irregularities” by the election board.
In a speech immediately after the ruling, Kenyatta said he disagreed with the ruling but would accept it. But in a public rally later he referred to the judges as “wakora,” a Kiswahili term for a cheat. The next day, Kenyatta promised to “fix” the judiciary.
Esipisu, the spokesman, said the president used the term wakora to criticise a judgement he views as subverting democracy. “Anything that doesn’t express the will of the people is wakora,” Esipisu said.
At another rally, Kenyatta told a crowd that Odinga was a “witchdoctor” because he was insisting on being consulted on the date of new elections.
Odinga told Reuters in an interview that the statements were unpresidential.
“When the anger settles, we should have a sober campaign without insults,” he said in an interview. “These campaigns will be fought on the basis of serious issues, not who can shout loudest, who can insult more than the other person.”
But later he couldn’t resist adding a personal dig at Kenyatta, saying that the president was probably drunk.
“It was irresponsible for the president to address the nation when he appeared to have taken one too many,” he said. “I think it is an insult to the nation.”
Asked about that comment, presidential spokesman Esipisu said: “We don’t comment on rubbish.”
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additional reporting by Humphrey Malalo and Maggie Fick; writing by Katharine Houreld; editing by Peter Graff
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Kenya election campaigns turn personal after court orders fresh polls

Jared Jeffery and Jacques Nel | NKC African Economics
On Monday, September 4, the Independent Electoral and Boundaries Commission (IEBC) announced that the country will head back to the polls on October 17. However, National Super Alliance (Nasa) presidential candidate Raila Odinga has rejected the proposed date citing a lack of consultation.
Mr Odinga is reported as saying that the opposition wants its issues regarding the IEBC (the firing of its top six officials and an audit of the technology used in the election) to be addressed before a date is set.
Mr Odinga is quoted by Reuters as saying that he wants elections held on either October 24 or 31.
In addition, Nasa states that it plans to lodge 62 court cases contesting the results of governorship, legislative and member of county assembly (MCA) elections.
Thus, while we know that fresh elections must by law be held within 60 days of the historic September 1 Supreme Court ruling annulling the August election results, it remains unclear whether they will be on the date specified by the IEBC and who will organise and oversee them.
IEBC Chairman Wafula Chebukati on Tuesday, September 5, dismissed reports that the commission’s CEO, Ezra Chiloba, and other senior staff have been put on compulsory leave, but said that changes to the secretariat would be made before the election.
Furthermore, Mr Chebukati said that “the commission is revising the operational and procedural requirements for the conduct of the fresh elections,” adding that those changes will be expedited once the commission gets the full judgment of the Supreme Court.
That, however, may only be towards the end of September (the court must make its full judgement available by September 21), which would leave the commission with little time to institute the necessary changes.
Mr Chebukati himself has refused to step down which will not help improve the credibility of the commission.
Assuming the elections go ahead in October as planned, what are the possible political and economic implications we can expect?
The next two months are going to be turbulent as both parties kick campaigning into high gear once again.
The run up to the August election was for the most part more peaceful than the 2013 poll (the gruesome murder of IEBC employee Chris Msando notwithstanding). Protests and riots in the six months prior to the election averaged 20 per month compared to 24 per month for the six months before 2013’s poll, according to the Armed Conflict Location &amp; Event Data Project (Acled).
But protests and riots in the lead up to an election are not necessarily a good predictor of what to expect thereafter. In 2007, there were only 24 protests and riots in total in the six months leading up to those controversial polls, but the violence that followed the announcement of results claimed around 1,113 lives and left hundreds of thousands displaced.
The fallout from the disputed results of the August 8 election was more violent than we had expected. Although there were fewer recorded protests and riots than in 2013 (31 in August 2017 compared to 34 in March 2013), the number of fatalities attributed to post-election unrest so far this year was significantly higher (Human Rights Watch puts the figure at 24 but said that this was likely an underestimate, while Acled data states as many as 45 lives were lost).
The police have yet to be officially censured and there are calls for the Independent Policing Oversight Authority (IPOA) to investigate, but with 60 days until the next election, there is not much time to have any effect on policing culture. The official commission of inquiry into the 2007/08 post-election violence attributed 405 of the 1,113 deaths to the police.
Tensions may increase ahead of the October polls, but the real danger will come once the results are announced – whichever way they go.
With regard to the expected result of the re-run election, we still believe that President Uhuru Kenyatta is the favourite to win.
Prior to the August 8 poll, we had forecast that he would win with around 52.3% of the total vote (the annulled results showed that he received 54.3%).
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The main factor to watch remains turnout. As can be seen in the graph, Mr Kenyatta’s Jubilee Party is dominant in the country’s most vote-rich regions.
If turnout is higher in October than in August, as we suspect it will be, the likelihood of the incumbent retaining his place will also be higher. We had anticipated a turnout of 78.6% ahead of the August 8 poll (compared to 84.9% in 2013), and the IEBC’s annulled results showed a turnout slightly lower at 77.5%.
The annulled results, while in line with our forecasts, did show some surprises. We had expected Mr Odinga to do better in Nairobi and for turnout in the Rift Valley and North Eastern regions to be higher (which would have favoured Mr Kenyatta).
Of course, there is still a chance that Mr Odinga could win the presidential election. If this were to occur and there were no re-runs of elections for parliamentary seats, it would mean that he would be president while the Jubilee Party had a significant majority in the National Assembly.
This would in all likelihood lead to his policies being stonewalled – effectively making him a lame duck president – and would have serious implications for economic growth.
Turning to implications for the economy, our next forecasting round is only at the end of October so we do not have any new figures at the moment, but we have narrowed down the possible impact on our forecasts.
Arguably the biggest risk relates to the country’s fiscal position. The 2017/18 budget has allocated just under $400m towards the IEBC for election-related expenditure, but some estimates put the actual cost of the election at around $500m.
It should be noted that a large proportion of this spending would have been once-off purchases that will not have to be repeated, and donors would have also footed a proportion of the bill – and we can expect external donors to remain engaged for the October elections given the positive light in which the Supreme Court’s decision has been received, at least from an institutional perspective.
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Still, the amounts involved do raise some concern, particularly when considering Kenya’s already precarious fiscal position.
However, precisely because of this precarious fiscal position, we expect Kenyan authorities to keep a firm grip on any unplanned spending in order to contain risk perceptions. The IMF has continued its unwavering support for Kenya despite the country’s disappointing fiscal consolidation track record, but the Kenyan authorities would not want to push their luck in this regard.
Also, every major rating agency identifies Kenya’s fiscal position as risk negative, and Kenyan authorities will need to ensure that these perceptions do not deteriorate going forward. Consequently, we do not expect any significant difference to the country’s fiscal forecasts.
One important channel through which we do expect the re-run of the election to have an impact on our forecasts is on external balances.
It was quite telling how quickly regional traders (particularly Ugandans) were willing (and able) to channel external trade through Tanzania at the expense of Kenya due to fears of trade disruptions during the election period.
Given that this period is now being extended, we can expect more trade to be directed away from Kenya – re-exports has become an increasingly important trade category in Kenya.
In addition, the uncertainty created by the political environment will also have a negative impact on tourism, which will reduce services receipts. The overall impact on external balances will be notable but won’t have a material impact on external risks.
With regard to GDP growth, the re-run is expected to have a marginal negative impact.
This will primarily be through the impact on risk perceptions, with both domestic and external investors adopting a wait-and-see approach.
Foreign direct investment (FDI) dropped from just under $600m in 2015 to just over $300m last year. Our previous forecasts incorporated a notable rebound in FDI this year, but these figures will be adjusted to show relatively stable FDI in 2017.
Furthermore, the negative impact on GDP growth in 2017 will be largely offset by a slight improvement in 2018 growth as insecurity perceptions subside.
There is still a lot of uncertainty regarding the October re-run elections. We do not know what changes will need to be made to the IEBC and whether they will have time to implement them. We do not know whether other elections (legislative, governorship and MCA) will also be re-run. And we certainly do not know whether candidates are going to call for calm in order to avoid further violence.
What we can perhaps be more sure of is that Kenyans will be more motivated to vote when elections do occur – meaning voter turnout would be higher which would boost Mr Kenyatta’s chances of re-election.
If legislative elections are not re-run and Mr Odinga pulls off a surprise win, we can be sure that a Jubilee-dominated Parliament would make policy making very difficult for him and this would have negative consequences for the economy.
We can expect the economy to suffer over the short term due to these multiple uncertainties and the country’s already-precarious fiscal position could be negatively affected.
There was euphoria in many quarters when the Supreme Court made its historic ruling. The institution’s independence is positive and the precedent set will hopefully lead to better elections going forward. However, the ruling has not been without its costs.

Kenya – Implications of fresh elections

Dominic Burbidge | University of Oxford
The Kenyan Supreme Court has found that the August 8 presidential election result is invalid. It blames the electoral commission, not the declared winner, Uhuru Kenyatta. Kenya’s leading newspaper praises the decision as a step towards the rule of law, but I am less sure about what this means for the ability of the political establishment to stick to the terms of the country’s constitution.
The Supreme Court has given the country 60 days to hold fresh elections. The time period is in accordance with section 140 (3) of the Constitution, but the court failed to tell the public exactly what the Independent Electoral and Boundaries Commission (IEBC) had done wrong. This leaves Kenya with a compromised commission rerunning an election.
Chief Justice David Maraga noted that the court had previously failed to provide a full judgment on the 2013 elections and this had not been received well. He then did exactly the same. Of course, the court had to provide a judgment on the opposition’s petition within 14 days, as stipulated by the Constitution. This is the period before the president-elect is inaugurated. The court would have sparked a constitutional crisis if it had not made any decision.
But by not explaining how the IEBC has failed, the court has created a problem. It’s impossible to organise the next election and reform the commission in the time given.
<h2>Time pressure</h2>
The court gave itself up to 21 more days to deliver its full judgment. This would leave the country with only 39 days before the fresh election. Already, opposition leader Raila Odinga has declared that his coalition will refuse to participate in presidential elections under the current leadership of the IEBC.
But, as a newspaper commentator observes, it’s just not feasible to remove IEBC commissioners without a tribunal, which is then reviewed by parliament. Complicating matters further, three citizens have filed a separate petition to ask the courts to remove certain IEBC officials over their wrongdoing.
Even once the full judgment is handed down within 21 days of the ruling, it probably won’t indicate criminality at the level of individuals. The Supreme Court was asked only to determine the validity of the election overall. Its full judgment can indicate how the process of the election must be improved.
The election was judged to be void because the electoral commission was at fault. This suggests it must change its procedures – and perhaps its personnel – if better elections are to take place. A new election must avoid the errors of the previous one.
Political scholar Gabrielle Lynch explains some of the corrections that have to be made. These include the process for transmitting results, the use of security forces and the uneven use of state resources.
Few of these suggested corrections will be feasible within the allotted timeframe.
<h2>Serious problems</h2>
Indeed, the problems are serious. Months before the election was held, the courts ordered the IEBC to stop printing ballot papers, because ofclaims that the Dubai-based firm Ghurair held too many links to Kenyatta.
The claim against Ghurair was dismissed due to insufficient evidence. But part of the IEBC’s successful defence against the court order was the time pressure of having to hold an election in a few months’ time. If time pressure was a valid reason then, why would it not be now? Why would an even more rushed election be credible?
The murder of the IEBC’s IT manager, Chris Msando, will now be under even closer scrutiny by the media. But even if the crime was directly related to the muddled tallying of votes, there isn’t time before the rerun to find individuals guilty. It is highly unlikely the full Supreme Court judgment will touch upon this tense topic. And that further reduces the credibility of the current IEBC.
<h2>Credibility concerns</h2>
The wider concerns with the IEBC date back to the “Chickengate” scandal. A UK court found a UK firm had bribed the IEBC (then the Interim Independent Electoral Commission) to get the contract to print ballot papers for the 2010 Kenyan constitutional referendum.
The UK co-conspirators were found guilty. But no-one from the Kenyan side was put behind bars by Kenyan courts. This created mistrust of the IEBC leaders. The current crisis will revive past anxieties like these, but leave no time for meaningful reform.
In Kenyan elections, local witnesses must sign the official forms to say the local tally is accurate. Central tallying organised electronically must then match with these local forms. The election is considered free and fair if this is done properly. The Supreme Court has ruled that both the IEBC as a whole and its chairperson, Wafula Chebukati, are responsible for the failure on 8 August.
Chebukati has refused to stand down. His response doesn’t boost public confidence in the institution. If the public is to trust the rerun, he must go.
<h2>Asking for more time</h2>
The IEBC should then petition the Supreme Court to give it more time.
It was done before, when the 2013 election was delayed because of the difficulty of implementing aspects of the new Constitution.
Section 86 of the Constitution requires the IEBC to collate the results of an election openly and accurately. At present, it can’t meet this requirement because it does not know what it must do differently from before. The IEBC should therefore depend on Section 86 when it asks the Supreme Court for more time.
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This article was first published in The Conversation.

Kenya’s Supreme Court has given an impossible deadline for the repeat election

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Kenya’s Independent Electoral and Boundaries Commission has set the new polling date on the 17th of October, and limited the number of candidates on the ballot to President Uhuru Kenyatta and opposition leader Raila Odinga.

Kenya sets election date for Kenyatta-Odinga re-run

Kenya’s election commission on Monday set Oct. 17 as the date for a new vote ordered by the Supreme Court when it annulled an August poll won by President Uhuru Kenyatta.
The election will feature Kenyatta who is running for a second term and opposition leader Raila Odinga, the commission said.
A presidential spokesman said the government will not replace the election board ahead of the election, setting up a potential showdown between the government and the opposition.
Kenyatta won the Aug. 8 vote by 1.4 million votes. The court on Friday said the election commission had not followed proper procedures and ordered it to hold a new vote within 60 days. It did not stipulate any personnel changes.
Kenya’s election commission on Monday set Oct. 17 as the date for a new vote ordered by the Supreme Court when it annulled an August poll won by President Uhuru Kenyatta.
The election will feature Kenyatta who is running for a second term and opposition leader Raila Odinga, the commission said.
A presidential spokesman said the government will not replace the election board ahead of the election, setting up a potential showdown between the government and the opposition.
Kenyatta won the Aug. 8 vote by 1.4 million votes. The court on Friday said the election commission had not followed proper procedures and ordered it to hold a new vote within 60 days. It did not stipulate any personnel changes.
Spokesmen for Kenyatta and the election board rejected a change to the entire board.
“The Supreme Court gave clear guidance on who will hold the repeat election. You cannot accept one half of the verdict of the Supreme Court and not the other,” said presidential spokesman Manoah Esipisu.
Andrew Limo, a spokesman for the electoral board, said the situation was complicated by the fact that the court would not release its full verdict until Sept. 21.
Judges read short remarks criticizing the process but did not go into detail, saying they needed more time to consider more than 80,000 pages submitted as evidence.
“If you want to punish people, you must have a basis for it. But the only basis is the full judgment of the Supreme Court, which will not be out until 21 days,” Limo said.
“Otherwise the commission could get into a position of defending itself in court from people who were dismissed.”
Odinga’s spokesman was not immediately available to comment.
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Editing by George Obulutsa and Matthew Mpoke Bigg
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Kenyan election commission sets Oct. 17 as date for new vote

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Kenya&#8217;s opposition party, National Super Alliance is continuing its push for reforms within the Independent Electoral and Boundaries Commission after the Supreme Court ruled in its favour by nullifying President Uhuru Kenyatta&#8217;s win.

Kenyan opposition calls for election commission to be disbanded

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In the Supreme Court ruling in Kenya today, the Court found fault on the part of the first Respondent, the IEBC, the body that oversaw the Kenya election. The Court ordered that the IEBC set up another Presidential election in the next 60 days.

IEBC chairperson responds to Kenya Supreme Court ruling

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Kenya&#8217;s Supreme Court has invalidated the result of last month&#8217;s contentious presidential election and ordered a new vote, after a legal challenge by the opposition. Four out of six judges upheld a petition filed by opposition candidate Raila Odinga.

Kenyan Supreme Court orders rerun of presidential election

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Kenya’s shares and dollar bonds plummeted on Friday while its shilling currency fell after the Supreme Court declared President Uhuru Kenyatta’s election win invalid.

Kenyan shilling tumbles after Supreme Court annuls election

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President Uhuru Kenyatta has said that he disagrees but respects the ruling delivered by the Supreme Court of Kenya today, nullifying his win in the August 8th election. President Kenyatta has however called for unity among Kenyans, and said he’s ready to hit the campaign trail afresh.

President Kenyatta disagrees but respects court ruling

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Amnesty International Kenya has called today’s Supreme Court ruling on the presidential election ‘historic’, while calling on the police to observe restraint in handling any celebrations or protects. Justus Nyang’aya, Country Director at Amnesty International Kenya joins CNBC Africa for more.

Amnesty International Kenya hails historic decision

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Supreme Court of Kenya declared President Uhuru Kenyatta&#8217;s election win invalid due to irregularities committed by the election board and ordered a new vote in 60 days. Opposition leader Raila Odinga whom filed the petition speaks about the court judgement after the announcement.

Odinga speaks out as Kenya court nullifies president’s election win

Faith Kiboro | SMC University
After Kenya’s contested election result, opposition leader Raila Odinga announced he wouldn’t be seeking legal redress for what he termed “a sham of an election”. Three days later he’d changed his mind and said he would be contesting the election in the country’s Supreme Court.
This means that Uhuru Kenyatta’s victory is on hold pending a decision by Kenya’s highest court. Its decision is expected in early September. The Supreme Court bench will be constituted by seven justices. These are the Chief Justice David Maraga, his Deputy Lady Justice Philomena Mwilu, Lady Justice Njoki Ndung&#8217;u, and justices Smokin Wanjala, Mohamed Khadhar Ibrahim, Jackton Boma Ojwang and Isaac Lenaola.
The petition is effectively an audit of the electoral process. This is a good thing. To build resilience against election-related disputes, Kenyans must stay open to legal arbitration as a way of vetting the democratic process, and standing up for stronger democratic values.
<h2>Odinga’s case</h2>
The main grounds of Odinga’s petition are that some of the presidential results were derived from nonexistent polling stations by ungazetted presiding and returning officers.
Odinga is also claiming that the results that declared Kenyatta the winner were not submitted procedurally. This claim has been a source of controversy and is likely to form a large part of the petition.
Odinga is also likely to argue that the election commission chairperson acted contrary to the law because he didn’t have all the requisite tallying documents when he declared the result.
He will have to prove that:
<ul>
<li>Some of the requisite tallying documents were not presented and verified at the national tallying centre before the results were declared. He would then have to prove that the failure to present and verify the documents significantly altered the outcome.</li>
<li>The tallying documents did not present a truthful account of the vote – in other words that some were fabricated or falsified. If he can prove this then the integrity of the election will be called into question.</li>
</ul>
<h2>Possible outcomes</h2>
If the court finds that the presidential election was invalid a fresh electionwill have to be called. This would involve the presidential candidates who participated on August 8. If any abandon the electoral contest or die before the scheduled date a fresh nomination exercise would have to be held.
After Odinga’s 2013 presidential petition, the Supreme Court ordered a partial recount of votes before upholding Kenyatta’s win.
But this time around the court is likely to ask for closer scrutiny of the entire poll process.
Odinga has filed a 25,000-page petition, compared to the 800-page document he filed in 2013. This places a huge responsibility on the court to sift through all the allegations.
A number of potential factors could affect its decision.
Firstly , the Supreme Court is likely to be swayed by the opinions of 400 election observers who deemed the election credible.
Secondly, the current chief justice is known to be a moderate. His conservatism may mean that he will uphold the electoral commission’s position and maintain that the election was carried out in a free, fair and transparent manner.
Invalidating the general election would be unprecedented in Kenya. But it could happen because the chief justice is keen to demonstrate judicial independence. The judiciary has recently come under attack from political leaders for deciding in favour of the opposition in its determination of a series of high profile pre-election cases.
<h2>Letter versus spirit of the law</h2>
Ultimately, the judges could go one of two ways.
They could make a decision based purely on the letter of the law. Or they could opt for a judgement that adheres to the spirit of the law – in other words the intention of the law as opposed to its literal meaning.
A judgement based on the spirit of the law is likely to serve the greater good – that is a return to normalcy as quickly as possible.
In the 2013 presidential election, the Supreme Court set a standard of proof which it phrased in a question.
<blockquote>Did the petitioner clearly and decisively show the conduct of the election to have been so devoid of merits, and so distorted, as not to reflect the expression of the people’s electoral intent?</blockquote>
There’s no doubt it will ask the same question this time round.
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This article was first published in The Conversation.

Op-Ed: Kenya’s election: Supreme Court judges hold the key to the outcome

The management of the public’s craving for negative stories is one of the longest standing dilemmas of journalism ethics. Bad news commands more attention than good news and so, as the old creed goes, “If it bleeds, it leads”.
By this rule book, the killings of least two dozen opposition protesters following the declaration of Kenya’s presidential should have elicited banner headlines and rolling TV news coverage. More so given that two of the victims were children – a <a href="http://www.nation.co.ke/news/Baby-Pendo-death-police-brutality-Kisumu/1056-4060978-122m7ucz/index.html">six-month-old baby</a> and 10-year-old girl <a href="http://www.nation.co.ke/counties/nairobi/Girl-shot-dead-Mathare-demos/1954174-4054816-hi8bocz/index.html">shot dead</a> while playing with friends.
The stage for this violent outcome had been set within hours of polls closing on August 8, when opposition coalition leaders held a press conference in the wee hours of the morning alleging <a href="https://qz.com/1049814/elections-in-kenya-2017-raila-odinga-says-results-were-hacked-for-president-uhuru-kenyatta/">manipulation of results</a>. This followed early indications showing Jubilee Party’s Uhuru Kenyatta taking a commanding lead.
When Kenyatta was <a href="http://www.aljazeera.com/news/2017/08/uhuru-kenyatta-wins-kenya-presidential-election-170811090542971.html">declared winner</a> with 54% of the vote against Raila Odinga’s 44%, things took a turn for the worse. While Jubilee supporters took to the streets in celebration, Odinga’s supporters launched days of protests against what they viewed as a rigged election.
International viewers all over the world saw images of police brutality and general mayhem. But in Kenya itself, the coverage of killings, violent protests and police use of excessive force was <a href="https://www.washingtonpost.com/news/global-opinions/wp/2017/08/11/kenyas-elections-show-how-the-media-has-sold-its-soul/?utm_term=.4b352b0c92c6">downplayed</a> in the mainstream media.
Yet the violence had been anticipated prior to the elections. All of the areas in which skirmishes broke out had been identified as <a href="http://www.ebru.co.ke/ncic-maps-out-33-counties-as-hotspots-ahead-of-2017-elections/">hotspots</a> likely to experience election related violence. The only thing in doubt was how severe they would be.
Why mainstream media chose to downplay the violent aftermath of the elections and the implications of this approach is the matter of agonised debate. It is a debate that has roots in the coverage of the <a href="https://www.hrw.org/report/2008/03/16/ballots-bullets/organized-political-violence-and-kenyas-crisis-governance">post-election violence</a> that engulfed Kenya in 2007-2008 leaving over 1,000 people dead and more than 500,000 displaced.
<h2>The legacy of 10 years ago</h2>
In the 2007 poll the mainstream media was <a href="http://www.sandiegouniontribune.com/sdut-kenya-media-self-censoring-to-reduce-vote-tension-2013mar07-story.html">roundly blamed</a> for fanning the flames of civil unrest by broadcasting images of violence after Odinga disputed Mwai Kibaki’s presidential election victory.
In the <a href="http://sahanjournal.com/kenyan-media-election-coverage/#.WZ0vaCgjHIU">2013 elections</a> the media was accused of pushing a <a href="http://www.cco.regener-online.de/2016_1/pdf/gustafsson2016.pdf">peace narrative</a> to avoid the mistakes made in 2007-2008. They were accused of abdicated their professional responsibility by urging the country to “accept and move on” after yet another contested election.
In 2017, the absence of mainstream coverage meant that citizen journalists filled the information vacuum with inflammatory reports of violence even where it had <a href="https://www.youtube.com/watch?v=Y367LacHfQ4">not occurred</a>. This torrent of unverified reports <a href="http://www.latimes.com/world/africa/la-fg-kenya-election-social-media-20170814-story.html">fuelled tensions</a> even further.
<h2>Deliberate failure to report</h2>
Kenya’s media failure to comprehensively report on the violence, and the excessive force employed by security officers against civilians, was informed by various factors. Top of these was the influence of external stakeholders.
Throughout the election period <a href="http://www.capitalfm.co.ke/news/2017/03/kenyan-media-signs-poll-coverage-code/">many conversations</a> were held between media and various parties which impressed on them the need for responsible coverage. The parties included Kenya’s National Integration and Cohesion Commission, The Media Council of Kenya, the Independent Electoral and Boundaries Commission itself, and civil society. The idea was to ensure that Kenyans went to the poll with minimum disruption and that there was <a href="https://www.mediasupport.org/wp-content/uploads/2012/11/ims-csj-handbook-kenya-20081.pdf">conflict sensitive reporting</a>.
It’s still unclear whether these appeals were directly responsible for what appeared to amount to self-censorship across big media. The media clearly avoided broadcasting confrontations between demonstrators and law enforcement. For example, there were <a href="http://www.the-star.co.ke/news/2017/08/12/photos-gunshots-in-kibera-mathare-as-cops-disperse-post-election_c1615333">outbreaks of violence</a> and excessive use of force in Nairobi and <a href="http://www.aljazeera.com/news/2017/08/relative-calm-kisumu-kenya-election-clashes-170812065649035.html">Kisumu</a> on August 11 and 12. These only appeared on television broadcasts after social media reports.
Another contributing factor was the delays caused by extensive fact checking. Editors made the extra effort to triple check facts to guard against the avalanche of fake news.
This fact checking process meant that death toll figures were delayed as the press endeavoured to establish exactly how many people died after violent altercations with security officers. There continues to be disagreement on exactly how many people died. But many of them are alleged to have been <a href="https://www.theguardian.com/world/2017/aug/12/kenyan-protests-against-kenyatta-election-victory-turn-deadly">victims of police brutality</a>.
<h2>Implications of the ‘cautious’ approach</h2>
The coverage of Kenya’s 2017 post-election violence is likely to have wide-ranging effects on local media practice in Kenya. Alternative news sources quickly filled the information vacuum when the mainstream media took a back seat. If mainstream media does not play its active role, this pattern is likely to continue.
As policy analyst Nanjira Sambuli argues, Kenya became a <a href="http://www.aljazeera.com/indepth/opinion/2017/08/kenya-latest-victim-fake-news-170816121455181.html">victim of fake news</a> that was spread through social media. One could reasonably argue that the media abrogated three of its <a href="https://www.researchgate.net/publication/237394610_The_Agenda-Setting_Role_of_the_Mass_Media_in_the_Shaping_of_Public_Opinion">primary roles</a>: provision of information, being society’s watchdog and agenda setting.
A country’s trust in the media is quickly eroded when it’s viewed as failing to fulfil its primary role. The press is arguably society’s best watchdog and the Kenyan media has usually stood at the forefront in countering state excesses. Going by citizen reports of police using lethal force against civilians, it is clear that the watchdog went missing or came out too late.
There is also a growing feeling that the media has been <a href="https://www.standardmedia.co.ke/article/2001251955/media-accused-of-not-playing-watchdog-role">compromised by the state</a>. If this is indeed the case, then they will soon lose all power to hold the executive to account.
<img loading="lazy" decoding="async" src="https://counter.theconversation.edu.au/content/82705/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1" />Moving forward, there is need for some self evaluation on the part of Kenyan media. It would be helpful to understand why things were not done differently. As Kenya continues to find its democratic footing, media remains an insuperable part of the growth.
Article written by <a href="https://theconversation.com/profiles/george-w-gathigi-321751">George W. Gathigi</a>, Lecturer, <a href="http://theconversation.com/institutions/university-of-nairobi-1958">University of Nairobi</a>
This article was originally published on <a href="http://theconversation.com">The Conversation</a>. Read the <a href="https://theconversation.com/media-handling-of-kenyas-election-protests-calls-for-some-soul-searching-82705">original article</a>.

Following Kenya’s elections, media needs to do some soul-searching

Faith Kiboro | SMC University
A few hours after Kenya’s polling stations closed on Tuesday August 8th, the country’s Independent Electoral and Boundaries Commission began transmitting live results.
But even before it had a chance to complete the tallying process, the opposition candidate Raila Odinga and his National Super Alliance (NASA) disputed the credibility and fairness of the process, claiming that they had garnered 8.04 million votes against Uhuru Kenyatta’s 7.7 million.
These results differed widely from the official electoral figures which on Friday placed Kenyatta in the lead with 8.1 million votes, and Odinga in second place with 6.7 million.
History seems to be on the side of the Independent Electoral and Boundaries Commission: international observers – of which there were 400 at various stations on polling day – have by and large come out to say that the process was credible.
If we take the practice of democracy as playing the game and abiding by the rules, then for Kenya the game is far from over.
In the end, the final judgement could be made by the country’s courts. The rules governing elections in Kenya are set down in the constitutionwhich states that a candidate will be declared president if he or she has received more than half of all the votes cast in the election, and that at least 25% of the votes cast in each of more than half of the counties.
If indeed there is an election petition, both sides are heavily invested in the outcome. For Odinga it is do or die. He has unsuccessfully contested for the top seat three times. However, despite this being his last shot, he has maintained that legal recourse is not an option.
The future of his running mate Kalonzo Musyoka is also uncertain – results show that some of the candidates vying for gubernatorial seats on his Wiper party ticket were unsuccessful, thereby lowering his political party’s future value proposition.
For Kenyatta and Deputy President William Ruto the marriage of convenience is under pressure to continue for another five years to pave the way for Ruto’s succession.
<h2>Things that stood out</h2>
Despite the fears of post-election violence there was a lot of goodwill for this election to be a success. Campaigns for a “tribeless Kenya” and various activities that promoted peaceful elections were a part of the pre-poll fabric.
While there were multiple reports predicting violence, there was relative calm after voters had gone to the polls. And for the most part Kenyans have so far affirmed that no blood needs to be shed.
But there has been violence. Kenyans in low-income areas been caught up in deadly clashes with the police.
These incidents have been localised to opposition areas and the majority of Kenyans seem eager to return to normalcy. This resolve is being tested by the opposition alliance which announced on Sunday that it was preparing a post-election strategy. Many fear that this could heighten tensions further.
The election, and its aftermath, provide an opportunity for Kenya to reflect on how the electoral process went and how, in the future, it can deal with complaints and inconsistencies better.
But there have been many positive reports on the election process. These, combined with what observers say was largely a free and fair election, have increased international confidence in Kenya’s election processes.
<h2>What was memorable</h2>
What will the 2017 election be remembered for?
The road to Canaan: The 2017 election was an incumbent election with polls consistently showing an incumbent win for Kenyatta. Nevertheless, the opposition colourfully portrayed their campaign as the Road to Canaan, with Joshua (their flag bearer Odinga) leading them to the Promised Land full of milk and honey. The biblical story of Joshua is of a military commander who takes the mantle from Moses. His mission is to take the Israelite tribes to the land of Canaan after 40 years of wandering. The story of Canaan is one of hope and the message resonated with many Kenyans.
The year of the independent candidate: Legislation that put a definitive end to party hopping after the party nomination process gave rise to the “big two” National Super Alliance and Jubilee Party coalitions.
In my opinion this legislation changed Kenya’s political landscape because smaller parties were swallowed up by the big coalitions. Many who tried to secure nominations from the Jubilee Party and National Super Alliance failed. They were therefore left no option but to stand as independent candidates if they wanted to keep alive their dreams of running for office.
But the election results have shown that the independent movement failed to get off the ground. By and large Kenyans favoured candidates from one of the big two coalitions. Only two counties – Isiolo and Laikipia – went against this trend, electing independent candidates as their next governors.
More women elected: In terms of gender representation, there’s a lot to be encouraged by, not least the fact that the first women governors were elected. The council of governors had previously been a male preserve. The number of women in elected seats also rose from 16 in 2013 to 22 in this election.
Leaders who work: The election results also showed the reduction in appetite for leaders who don’t deliver. This was clear from the number of incumbents who were unsuccessful in their bids to return to their posts.
In the end, election days come and go. The next phase is all that matters now. The intense electoral competition and the choices people made show that there is enough room for all Kenyans to participate – whether they belong to a big party or not – and to do so in a meaningful way.
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This article was published on The Conversation.

Kenya’s election: the good, the bad and the memorable moments

Kenyan opposition leader Raila Odinga said on Wednesday he would challenge last week&#8217;s presidential election result in court, calming fears that further street protests by his supporters might lead to widespread violence.
At least 24 people have been killed since the Aug. 8 vote, many of them shot by police. But while there have been scattered protests in Odinga strongholds, the demonstrations were relatively muted as supporters waited to hear what Odinga had to say.
When Odinga, a 72-year-old former political prisoner, called a news conference after days of public silence, crowds clustered around televisions and radios in the slums, falling silent as he began to speak.
&#8220;We have now decided to move to the Supreme Court,&#8221; Odinga told a bank of television cameras in the capital Nairobi. &#8220;This is just the beginning, we will not accept and move on.&#8221;
The election board said on Friday Kenyatta had beaten Odinga by 1.4 million votes to win a second five-year term. Odinga disputes that figure but has not yet provided proof of rigging.
The move to the judiciary will relieve Kenyans who feared a repeat of the violence that followed the flawed 2007 vote, when Odinga called for protests which led to a police crackdown and ethnic violence. Around 1,200 people died.
<h3 data-reactid="41">SEARCHING FOR JUSTICE</h3>
Odinga also contested &#8211; and officially lost &#8211; the 2013 election but quelled potential violence by taking his case to court. Judges ruled that much of his evidence was submitted outside time limits set by the court, which raised suspicion among his supporters of the judiciary&#8217;s independence.
Odinga acknowledged those frustrations, even as he backtracked on earlier opposition statements that going to court was not an option.
&#8220;Our decision to go to court constitutes a second chance for the Supreme Court. The court can use this chance to redeem itself,&#8221; he said.
His announcement follows days of intense behind-the-scenes negotiations, with diplomats urging him not to call for protests. International and domestic observers have said the polls were largely free and fair.
Odinga has accused observers of supporting the government, but an international official who has been in contact with both sides in recent days said Odinga has struggled in talks to clearly make his case for fraud.
Another international observer said Odinga&#8217;s team had identified 11 polling stations where the opposition had proof of problems &#8211; far too few to overturn the results.
Odinga did not detail such allegations in his speech. Instead, he repeated accusations of police brutality, naming a baby and a young girl whose families say were killed by police during a crackdown on his supporters on Saturday.
&#8220;By going to court we are not legitimizing misplaced calls from some observers for us to concede. We are seeking to give to those who braved the long lines in the morning chill and hot afternoon &#8230; a chance to be heard,&#8221; Odinga said.
Reaction to his decision was mixed, but in the Kibera slum, Nairobi&#8217;s largest, many expressed relief that they could get back to work.
&#8220;This decision to go to court is good. If they had not said that and told people to go back to the streets that would not have helped us,&#8221; said George Ouma, 28, a minibus driver. &#8220;Whatever the decision the court makes, that will be fine.&#8221;
In Mathare slum, Zipporah Otieno, 52, said: &#8220;Court has never brought us good results &#8230; It&#8217;s better for us to be on the road demonstrating than have our rights taken from us.&#8221;
<h3 data-reactid="71">MISSING FORMS</h3>
Earlier on Wednesday, the European Union observer mission, which has broadly praised the vote so far, urged the election commission to publish all remaining forms showing vote tallies on its website to ensure transparency.
Each individual polling station should have a form detailing the votes for each candidate, signed by all party observers. But Andrew Limo, an election commission spokesman, said about 2,900 of the 41,000 forms showing results at individual polling stations were not yet online.
&#8220;The timing of such information being made public is critical given that petitions relating to the presidential race must be filed within seven days of the results announcement,&#8221; the EU mission said in a statement.
Any challenge must be filed by the evening of Aug. 18.
The EU also criticized a government crackdown against a rights group and a pro-democracy organization that had publicly questioned preparations by the electoral board.
Police and tax authorities on Wednesday raided the Africa Centre for Open Governance, and on Monday issued a letter threatening to shut down the Kenya Human Rights Commission over administrative and tax issues.
Amid an outcry from the United Nations and international rights groups, the Interior Ministry later announced it was suspending the crackdown.
<div class="Attribution_attribution_o4ojT" data-reactid="79">
additional reporting by George Obulutsa, Katharine Houreld and Maggie Fick; Writing by Katharine Houreld; Editing by Janet Lawrence
</div>
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