The Supreme Court assembles to start hearing of the opposition election case. One judge fell ill, leaving six to decide the case. (Photo/Kenya Judiciary).

In An Africa First, Kenya’s Top Court Overturns A Presidential Election: Here Are 6 Reasons That Was Possible

ON September 1, Kenya’s Supreme Court threw what local media called a “supreme bombshell”, when it overturned the August 8 election of President Uhuru Kenyatta to a second term by 54% of the vote.

Ruling on a petition brought by opposition challenger Raila Odinga, by a 4 to 2 majority the court cited failures by the Independent Electoral and Boundaries Commission (IEBC) that it said rendered the election “invalid, null, and void”, and ordered a new vote to be held within 60 days.

The court, however, ruled that President Kenyatta’s was not to blame.

While presidential results have been overturned in Africa before, they have been by military juntas or pro-government courts, egged on by an incumbent refusing to concede defeat, taking victories away from the opposition – for example in Nigeria in 1993, Madagascar in 2002, and Ivory Coast in 2010. In Madagascar and Ivory Coast, after skirmishes and even war, they eventually came to naught.

The September 1 Kenya verdict therefore goes down in the history books as the first time in Africa where a court has ruled against the electoral victory of an incumbent and ordered a new election, instead of a recount, based on a court petition by the opposition.

‘UNAFRICAN’ AND HISTORIC

On social media, there were many comments and jokes about how the ruling was “unAfrican”. Raila himself and his lawyers said it was “historic”. Uhuru, moving between saying he respected the decision of the court, and slamming the judges, immediately hit the campaign trail.

Question then is, how did Kenya get to make this history? And why did it happen in Kenya, and not any other African country.

The common answer being offered is that it’s because Kenya’s judiciary is independent in ways most its African peers, barring South Africa, are not. While that might be true, it is only partly so. It is the same as saying eggs come from the supermarket. You might buy your eggs from the supermarket, yes, but they come from a chicken farm somewhere.

To understand the “shocking” Kenya Supreme court verdict, one needs to go back to the political farm, not to look into the character of the judiciary.

There are many reasons why this happened, but we look at 6 of them here.

•Outside the political and media drama that followed the verdict, and the brief shock to the Nairobi Stock Exchange that wiped nearly $50 million off the bourse and forced a short suspension, life was largely normal.

Raila Odinga (nearest pillar) and his running mate Kalonzo Musyoka (centre) at the Supreme Court to file their election petition. Their lawyer James Orengo (R) stands in front of the mountain of paperwork they submitted.

One reason for that is that the political cost of annulling the August 8 election was, in reality, relatively low. With the 2010 constitution that created and highly decentralised several government functions to 47 counties and powerful elected governors, there is less of a political crisis and vacuum if the president in Nairobi is hobbled.

•Secondly, a key pillar of the state in Africa, the military, in Kenya is fairly professional and at worst only mildly partisan. While different presidents have always appointed “their men” to the top positions of the Kenya Defence Forces (KDF), over the last 20 years at the core it has evolved through deliberate policy into a force for stability.

The KDF enjoys a level of broad political support rare for an African country that doesn’t have a history of militaries formed from a guerrilla war, like in Rwanda, for example.

This explains why there was deep disappointment in September 2013 when it emerged that rogue KDF elements had looted the Westgate Mall in Nairobi, following a deadly attack and siege by militants of Somalia’s Al-Shabaab terrorist group. Kenyans had trooped to bring the soldiers breakfast and refreshments as the siege dragged on, and felt betrayed.

While the rest of the security services don’t have an equal reputation, judges in Kenya can rule against a president’s election knowing they will not emerge to find a tank pointing its turret at the court’s door, as would happen in quite a few countries.

KENYA’S PRO-DEMOCRACY MOVEMENT

•All this, however, still begs the question, how is it that those things are possible? Its roots go back to how the pro-democracy movement evolved in Kenya during the Cold War and into the 1990s, heralding the end of one-party rule and a return to multiparty politics.

Partly because of how it has urbanised, the structure of agriculture and land ownership, and the nature of its food market with ugali (a maize-flour based pulp) as its staple, guerrilla war is a much more difficult form of resistance than in neighbouring Uganda or Ethiopia.

But it makes for very effective civil society mobilisation, and Kenyans mastered it like perhaps only two other countries have on the continent. The fight for reforms and political change in Kenya was thus carried out by a wide front of civil society groups working with opposition parties, while in East Africa in Burundi, Rwanda, Uganda, Ethiopia, South Sudan, it was via armed struggle.

An armed struggle is destructive, but offers many benefits too. It uproots the old order and regime and its structures more completely, allowing the victors to start on a clean slate and make far-reaching economic and social reforms without obstruction, if they are so inclined.

But because, in the end, it’s bullets, not philosophical arguments about the nature of the state, that win, they tend to recreate the old state with a benign face – not a totally different one. Thus presidential power will usually remain quite concentrated at the centre.

The path Kenya took is longer, and even more frustrating, though fewer people die. But it is often a furious philosophical project about the nature of the state, and the exercise of power that undermines power in a deeper doctrinal fashion. In Kenya there isn’t so much an obsession with democracy, as with limiting presidential power.

Thus by drip, drip civil society-cum-political action, culminating in the 2010 constitution, Kenyan power suffered a level of philosophical attack its African peers haven’t. The Kenyan presidency has thus been hollowed out substantially. However, general public perception of that reality is still lagging behind. It makes it relatively easier, to stand up to the presidency legally. However, two other factors have been necessary.

THIS THING CALLED ‘TRIBAL POLITICS’

First, one of the failings of Kenya is it widely panned “tribal politics”. Most political parties are semi-ethnic affairs, that only build majorities through alliances with other tribal parties. At best, as seen in the latest election outcomes, they are regional parties.

President Kenyatta immediately hit the campaign after the court verdict. (Photo/UK/FB).

It would be wrong, though, to totally dismiss tribal politics in Kenya and elsewhere in Africa. Just because a party is ethnic, doesn’t mean it lacks democratic content. Marginalised groups, or peoples protecting their ancestral lands, who organise their opposition to their rights around their ethnic group, are acting in democratically legitimate ways.

Nevertheless, because in the last two decades Kenya’s parties have tended to be largely ethnic or regional, they remain unable while in power to totally dominate the state and the country the way the ruling National Resistance Movement (NRM) does in Uganda, SWAPO in Namibia, or UNITA in Angola, to name a few.

While purists in Kenya decry that weakness, on the plus side it has in recent years allowed state institutions greater wiggle room for independence.

The ethnicised nature of Kenya politics is therefore both a curse, and a blessing.

 A HISTORY OF INDIVIDUALISM

•While Kenya has avoided conventional revolutionary war, its politics is still violent. As witnessed after the disputed December 2007 vote, and virtually all elections since the return to multiparty politics in 1992, it has had its fair share of post-election violence and bouts of ethnic cleansing.

Tragic as it is, post-election violence has become Kenya’s revolutionary war, and has acquired some instrumental value. The shock of violence, either on the streets during protests, or elections, has been what has frightened old vested and establishment interest to accept reforms for the last 30 years.

Therefore crises have now become an almost inevitable – and in some respects necessary – result of Kenya elections, because it ultimately is how politics gets reorganised, and the democratic needle moves.

•Going further back to the 1960s, we can find one of the sources of the stubborn individualism – whose undercurrent in the judges’ court verdict – that one finds in Kenya, and has for many times been a source of friction between it and its East African neighbours.

In the mid-1960s Kenya’s founding father Jomo Kenyatta, President Uhuru’s father, had a famous falling out with the principled nationalist and former Mau Mau freedom fighter Bildad Kaggia.

Kaggia was critical of what he saw as the rush by the new post-independence leaders to get rich. Kenyatta, who sacked Kaggia from government, asked him “what he had for himself” since his appointment as deputy minister.

It’s one of the most discussed statements in Kenyan political analysis, with critics holding that it was open licence to use public official for personal enrichment.

However, Kenya, along with Botswana and Malawi, became one of the few African countries not to experiment with some form of socialism in the 1960s and 1970s, and that remark by Kenyatta is considered by some as a kind of capitalist manifesto to pursue individual success and fulfillment when opportunity presents itself.

It has expressed itself in politics variously in the country’s long list of Quixotic politicians; in culture and arts in the stubborn pursuit of contrarian approaches by authors like Ngugi wa Thiong’o; and the history of hard-headedness by its civil society activists. And, also, its courts.

 

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