Kenya’s Supreme Court election decision tests judiciary’s credibility

Kenya’s president-elect William Ruto evoked England’s most famous playwright to describe his opponent’s challenge to last month’s election result, declaring it a Shakespearean “tragicomedy”.

The country’s Supreme Court has until Monday to decide if, as Ruto said, the petition by veteran politician Raila Odinga was “much ado about nothing”, or whether a rerun of the August 9 vote is required.

The decision will reverberate beyond the outcome of the challenge, with the seven-judge court’s hard-won reputation for independence also on the line. Analysts believe that, with people watching the process closely, any mishap in the judicial decision could spur anger in east Africa’s most advanced economy, which has a history of post-election violence.

“Elections have often caused human rights abuses, loss of lives, and serious injury,” said Davis Malombe, executive director of the Kenya Human Rights Commission, which is part of a group of civil society organisations that also want to nullify the result. He urged the court to “remain an impartial arbiter”, adding that the “peace of the nation” rested on its verdict.

Odinga and his running mate, former magistrate Martha Karua, claim “substantial and significant” irregularities “affected the result” that made Ruto the winner by a whisker. They want the court to order a “nullification of the declaration of results”.

Authorities would have 60 days to hold a fresh election if the court rules in favour of Odinga, who has already challenged presidential results three times during his longstanding political career and called the results of the latest poll a “travesty”.

Kenyan politician Raila Odinga
Raila Odinga wants the Supreme Court to order a ‘nullification’ of the results declared after Kenya’s presidential election last month © Yasuyoshi Chiba/AFP/Getty Images

The Supreme Court burnished a reputation for judicial independence in recent precedents.

In 2017 it became the first African court to scrap the victory of a sitting president when its judges nullified the result of a presidential election fought by Odinga and outgoing president Uhuru Kenyatta, who at the time was seeking a second term. Kenyatta called the judges “crooks” and one of their bodyguards was shot. He secured victory in the rerun after Odinga boycotted it.

The judges’ decision to invalidate Kenya’s election result five years ago was mainly due to the electoral commission’s opacity upon scrutiny, explained Waikwa Wanyoike, a Kenyan constitutional lawyer.

Nanjala Nyabola, a Nairobi-based political analyst, said with that decision, as an institution, the court “established itself as independent and credible, standing up to the executive”.

Kenya’s highest court faced renewed pressure after Kenyatta in 2018 threw his weight behind Odinga, an erstwhile enemy who ran against him in previous elections that sparked ethnic-fuelled violence.

The “handshake”, as their pact came to be known, led Kenyatta and Odinga the following year to propose constitutional changes widely perceived as a veiled attempt to consolidate political dynasties to exclude Ruto. Yet, in another display of judicial independence, analysts said, the Supreme Court in March rejected the constitutional amendments.

Murithi Mutiga, Africa programme director at Crisis Group in Nairobi, said the Kenyan judiciary was one of the most independent on the continent. However, it had come under “enormous pressure from the executive” in recent years, he said.

“Some of the pressure on the judiciary comes through formal channels, such as slashing budgetary allocations, but there were also reports of physical threats against judges in late 2017,” he said.

Kenya’s president-elect William Ruto
William Ruto, who was declared the winner of Kenya’s presidential election last month, said the legal challenge mounted by his main opponent was baseless © Ed Ram/Getty Images

A survey in November by pan-African polling organisation Afrobarometer showed that almost 60 per cent of respondents trusted Kenya’s courts of law “somewhat” or “a lot”.

To make the process more credible, a high-level panel of African jurists has arrived in Kenya to observe the presidential election petition proceedings. It included justices from Malawi, another country where the constitutional court, in 2020, overturned the results of a presidential election.

Most Kenyans trust the courts of law – % who say they trust/don’t trust

In the wake of the most recent vote, Kenya’s Supreme Court judges have ordered a recount in some polling stations. They will decide whether electoral technology reached the standard required, if the transmission of results was suspicious and consider whether the electoral commission lawfully tallied the votes.

In their petition, Odinga and Karua claim the “electoral process has not been transparent, impartial, neutral, efficient, accurate and accountable”.

The crux of the issue for the court is whether the petitions have provided sufficient credible evidence to persuade it to overturn the result of the election. Judges must also weigh the implications of a potential rerun, say analysts.

The court in 2017 showed “significant independence by invalidating an election of a sitting president who was a contestant”, said Wanyoike. This time, he added, “the fact that the court could be wrong does not mean it is not independent”.

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