It was in this poisoned atmosphere that the IEBC announced a fresh election would be held on Oct. 26, with Odinga and Kenyatta being the only candidates on the ballot. Now that has been thrown into doubt following the announcement by Odinga that he and his running mate, Kalonzo Musyoka, would withdraw from the race. Ideally, this would be welcome news for Kenyatta, but these are far from ideal times. Rather than handing the presidency over to him on a platter, Odinga ironically took advantage of an obscure paragraph in the Supreme Court judgment that confirmed Kenyatta’s win in 2013, to push it a little further away.
In that petition, also filed by Odinga, the court opined that if a candidate was to drop out of the race after an annulment, then the election would need to be repeated from scratch, with a fresh slate of candidates. This would delay the elections by at least another two months and, coupled with the ongoing street protests and pressure from both the business community (which has suffered losses due to the political uncertainty) and jittery Western envoys, would force Kenyatta to negotiate a politically palatable solution.
That, in fact, may be what Odinga is striving for. Kenyan politicians, after all, have become adept at the game of brinkmanship, driving the country almost to the precipice before pulling back with an agreement at the 11th hour. The fights with former dictator Daniel arap Moi over constitutional and electoral reform were carried out in similar fashion. Compromises were hammered out over the dead and battered bodies of Kenyans protesting in the streets.
The truth is, despite all the talk of a constitutional crisis, this is anything but. The legal options are very clear. The crisis that Odinga’s withdrawal presents is rather a political one. It is a crisis of legitimacy. Kenyatta knows, despite his rhetoric, that without Odinga’s participation, half the country would view his win as illegitimate, which could make a further five-year tenancy of State House pretty uncomfortable. The outlines of a political deal are also very clear. Odinga agrees to lend legitimacy to the process in return for shelving the contentious amendments to the Elections Act snaking their way through parliament as well as genuine reforms to the IEBC and the electoral system.
Regardless, there are other positives that have come out of the never-ending election. The last month has provided Kenyans an object lesson in the workings and transformative power of the 2010 constitution. In the world before Sept. 1, elections were routinely stolen with impunity and the credibility of the process was regularly sacrificed at the altar of expediency. For the first time, Kenyans have had a taste of a world where the law can tame state power — and they appear to like it.
One opinion poll showed that more than three-quarters of likely voters were happy with the nullification, significantly including more than half of voters in Kenyatta’s ethnic stronghold. That is itself most encouraging and shows just how out of step Kenyan politicians are with the country’s mood.
In the coming days and weeks, Kenyans will need to defend the new legal and constitutional territory they have acquired. Already there is a rear-guard action by the establishment seeking to roll back the gains, with Kenyatta’s advisers and supporters now openly touting the dubious benefits of benevolent dictatorship. But Kenyans have seen what the constitution makes possible, and it is unlikely that they will be easily swayed.