By Christina Okello

05-09-2017 

Kenya’s Supreme Court judge chief justice David Maraga (C) presides before delivering the ruling making last month’s presidential election in which Uhuru Kenyatta’s win was declared invalid in Nairobi, Kenya September 1, 2017.Reuters/Baz Ratner

The court found that the electoral commission “committed irregularities in the transmission of results.”

That was enough to convince a majority in Chief Justice David Maraga’s panel to annul the results of the 8 August election.

“The greatness of a nation lies in its fidelity to its constitution and a strict adherence to the rule of law,” Justice Maraga declared on 1 September when he delivered his shock verdict.

“It’s one of the only times you’ve ever seen a sitting president’s election be overturned by the court of law. This rarely happens,” Nic Cheeseman, a professor of democracy and international development at the University of Birmingham, told RFI.

President Uhuru Kenyatta, after initially welcoming the decision, vowed to “fix” the court if reelected and called Chief Justice Maraga and the other judges crooks.

Opposition leader Raila Odinga, who petitioned the Supreme Court to nullify the election, called the ruling historic and a precedent for the whole of Africa.

“For the first time in the history of African democratisation a ruling has been made by a court nullifying irregular elections of a president,” he said.

His supporters erupted in disbelieving joy at the news, partly because Odinga had previously lost four elections, and cried fraud in all of them.

Previous poll violence

“It’s a proud moment to be Kenyan,” Dennis Owino, a political analyst with Kenya Insights told RFI.

“For a long time, Kenya has been in the spotlight for all the wrong reasons,” he says, in reference to the violence that marred the presidential polls in 2007 and 2013, as well as last month when at least 24 people were killed, most of them by the security forces.

Kenya’s image then was far removed from its current one as a beacon of democracy.

But the Supreme Court ruling didn’t find favour with everyone.

“The way people voted is what counts, it’s what matters and not more about how the votes are transmitted because it’s clear that Kenyans voted and voted well, and that there was no problem in the voting,” Wahome Thuku, a supporter of the ruling Jubilee Party told RFI.

Kenyatta’s lawyers said the vote overturn was politically motivated and that another round of voting was unnecessary.

“Everyone was in agreement that people voted and that the problem was in the transmission of the votes,” continues Thuku. “Will we have to go to the polls each time there are one or two irregularities?”

Observers criticised

Kenya’s election commission had declared Kenyatta the winner by a margin of 1.4 million votes in a poll vetted by the international community. Today those same observers mostly from the US and the EU, are now under scrutiny.

“A lot of the actual process around the election immediately looked like it was better, the machines worked in more constituencies than in 2013,” explains Nic Cheeseman, who monitored the 2013 polls as today.

“It was only later that we started to realise that certain forms weren’t available, that some results were being confirmed without the right forms and that process didn’t appear to be tight that certain concerns began to be expressed,” he says.

Those concerns were taken seriously by the Supreme Court, enough to annul the results.

Several Kenyan papers have since described Justice Maraga as a person of integrity, in stark contrast to the image of coruption that has long plagued the judiciary in Kenya and elsewhere on the African continent.

Ugandan opposition looks to Kenya

In Uganda the fallout from last year’s presidential elections are still being felt in one district in the north, Dokolo, where the outgoing chairman JB Okello Okello lost his seat to the ruling party’s candidate Paul Amoro, in a vote which many say was rigged.

“In respect of Okello Okello versus the electoral commission, it did not meet the expectations of the law that we believe should have been considered and adjudicated over,” Olal Justine, JB Okello Okello’s lawyer told RFI.

Justine says he hopes Uganda will emulate Kenya.

“We hope that what has happened in Kenya should have a positive ripple effect in the region and that those who feel aggrieved should have confidence going to court knowing that they will get justice.”

Kenyatta under fire

Back in Kenya, Kenyatta’s fierce reaction to the Supreme Court’s decision has fueled suspicion that he was complicit in the IEBC’s electoral fraud, says analyst Dennis Owino.

“If indeed the president won the election with clean hands then you’d expect the president to be mad at the IEBC for incompetence, that has cost him the victory.”

Instead that anger is being channeled at the judiciary, retorts Owino.

“He is still rooting for the same IEBC that has been found guilty of running a shambolic election, so in a sense the president is endorsing impunity, he’s endorsing electoral fraud,” he comments.

Although the Supreme Court found that there was sufficient evidence of tampering in the transmission of results to warrant a rerun, it found no misconduct on the part of Kenyatta himself.

The court’s full reasoning won’t be available for another few days. While it has ordered IEBC to organise a fresh poll in 60 days, it has not spelt out its plans for the compositon of the electoral commission this time round.

The opposition says it won’t take part if the IEBC remains the same.

“I think it’s hard to imagine an election in which we change the electoral commission 60 days out and then have a better quality election, I think that just doesn’t seem very likely to me,” reckons Cheeseman.

This uncertainty raises the risk that, if Kenya experiences another bad election, there could be renewed conflict in the courts or on the streets.