Supreme Court ruling signals new order for Kenyan politics

By Otieno Otieno

Political uncertainty surrounding Kenya’s disputed fourth presidential election has dashed incumbent President Uhuru Kenyatta’s hopes of breaking the cycle of divisive polls.

Supreme Court justices are expected in the coming days to hear and rule on petitions challenging Vice President William Ruto’s narrow victory in the August 9 election, which once again left the public divided between the two and the grievances of the rival politicians.

Lily: Senior Lawyers Clash: Top Legal Minds Face Off in Kenya Presidential Election Petition

Opposition leader Raila Odinga, who along with his running mate Martha Karua tabled one of the petitions, alleges his victory was stolen. Meanwhile, allies of President-elect Ruto continue to promote conspiracy theories about an ongoing power grab.

An uneasy calm has prevailed in the country ahead of the Supreme Court hearing, much like what happened in 2013 and 2017 when Supreme Court justices were also called upon to settle disputes over in the presidential election.

But this year’s court battle appears to evoke greater angst in the president-elect’s camp after the unprecedented ruling that overturned the results of the last election and ordered a rerun within 60 days.

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A number of Dr Ruto’s allies have in recent days targeted President Kenyatta with conspiratorial rhetoric seeking to tie him to the Supreme Court’s petition and pressure him to publicly acknowledge the former’s victory.

Read also : Explainer: What you need to know about Kenya’s Supreme Court election battle

The president, who has backed and campaigned for Mr Odinga to be his preferred successor, has yet to publicly congratulate Dr Ruto.

Whatever the court’s decision, the country is likely to be even more polarized, with one part of the population celebrating the victory and the other crying over electoral justice.

For President Kenyatta, this will mark a double loss, seeing his succession plan and a key pillar of his legacy program fail.

After political tensions stemming from the 2017 elections, he surprisingly called a truce with his bitter rival, Mr Odinga, in March 2018, promising to change the winner-takes-all system in Kenyan politics, to address the election malaise that divide and spare the country the seasonal disruption of economic activities.

“Every five years, the country almost comes to a standstill during elections. Investment and economic activity are slowing, causing Kenyans to lose their sources of income. Political competition often escalates beyond heated debate into ethnic polarization. Personal safety becomes uncertain and there is often violence.

Read also : Explainer: And after the William Ruto-Raila Odinga election results deadlock in Kenya

“Kenyans must overcome this negative cycle by acting in the knowledge that independent elections are not the solution to our national challenges,” reads a document prepared by a team of experts appointed to advise on reforms around the cooperation agreement. Uhuru Raila.

Economic downturn

Since 1992, economic activity has slowed by an average of 2.83% during election years. In 2017, economic growth slowed to 3.82% from 4.21% the previous year, while in 2013 it slowed to 3.8% from 4.57%.

The post-electoral violence of 2007 saw its growth drop to 0.23% in 2008, against 6.85%.

Signs that President Kenyatta might not be granted his electoral legacy wish were already clear in the 10 months to March this year when the courts blocked the constitutional referendum bill.

A “Yes” vote for the proposed referendum, popular as the Building Bridges Initiative, would have broadened the government structure to accommodate more of the country’s ethnic elites in power at any given time.

Read also : How Kenya’s presidential petitions changed the polling agency

Now, a battle in the Supreme Court after another contentious election looks set to bury President Kenyatta’s legacy ambition.

But then Kenya’s democracy – and society – is at its most fragile stage, with tensions and contradictions providing a powder keg, and needing only a minor trigger. The specter of instability and violence is as real as ever.

A political and diplomatic scholar who requested anonymity to speak freely as he works with various state and non-state institutions observed that the country is evenly divided numerically between the two leading candidates. But, geographically, it’s an imbalance, with the losing candidate controlling large portions of the country’s spatial map and the winning candidate having little reach.

“In Kenya, this has led to the co-ethnic presidency since independence, and has sometimes sparked conversations about the inadequacy of a presidential system. The proposal for a parliamentary system never took its full course,” said the researcher.

Observers note that Dr. Ruto’s United Democratic Alliance pledge to establish a state capture commission to investigate the First Family poses a real and immediate danger, with the incumbent feeling genuinely threatened.

Read also : Ruto faces tough battle to push agenda in parliament

The danger becomes even more apparent when one considers that, unlike Jacob Zuma in South Africa, President Kenyatta has lost his political base in the Mount Kenya region, leaving him feeling exposed and vulnerable.

With his personal freedom and family resources threatened, the president may feel the need to push hard to secure a more amicable outcome.

The court could uphold the IEBC’s verdict and make it harder for Mr Kenyatta to cling to power, although he may feel buoyed by the evenly divided country. It would take interventions from the international community to extract concessions from the president-elect not to pursue him in retirement. But that would be difficult because it would constitute Dr Ruto’s first “betrayal” to his supporters over the promises he made, and on which he got their vote.

The international community also has no influence over the incumbent.

The Supreme Court can annul the election and order a new poll. This has its own problem: who would oversee the election in 60 days given the IEBC indictment and in its current state of internal dysfunction?

Read also : Top lawyers compete in petition for Kenya’s presidential election

Does the Court oversee the election itself? Would the opposition agree to the current president overseeing this even under court supervision?

Could this process give rise to another petition that would extend Mr. Kenyatta’s mandate for another 72 days (if this second election is cancelled)?

Could Kenyatta make these cancellations run until the end of IEBC President Wafula Chebukati’s term in January?

Risks in re-performance

Experts say a recovery is likely to cause strong national tensions. The holder will use everything at his disposal to try to obtain a favorable outcome. But it may not be an election in the ordinary sense, which would create a crisis of legitimacy for the winner. It will probably be a violent and despicable contest.

Read also : How Power, Politics and Law Shaped Kenyan Rule

The court may declare the claimant the winner. Again, whatever the merit, say legal experts, the half of the country that currently holds the victory would feel robbed, however meritorious the declaration. This can trigger discouragement.

“Each of these scenarios can create the conditions for a revolution,” said the researcher.

About Alma Ackerman

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