On Aug. 11, Kenyatta was declared the winner with 54 percent of the vote against opposition candidate Raila Odinga’s 44 percent. International poll observers had endorsed the outcome, which appeared to be corroborated by a parallel vote tabulation.
Odinga went to court alleging that the IEBC’s computer systems had been hacked to favor Kenyatta. His lawyers alleged widespread discrepancies between official forms recording results from 40,000 tallying centers and the aggregated electronic results announced by IEBC. Odinga also alleged that Chris Msando, a senior IT expert at IEBC, was tortured and murdered 10 days before the election precisely to enable the tampering.
The court’s decision affirms the continued consolidation of democracy and the rule of law in Kenya — and undoubtedly will have a strong demonstration effect in the wider region. It also raises interesting questions about judicial independence and the role of courts in democratic consolidation.
How did the Kenyan Supreme Court manage to do what no other court in Africa has ever done?
In my research on institutionalization of politics in Africa (in this case looking at legislatures), I describe the need for a political (as opposed to merely operational) separation of powers from the executive as a basis of both judicial and legislative independence. For this to work, there must be both a separation of purpose and of mandate.
Legislative independence is likely if (1) presidents do not interfere in the internal functions of legislatures (purpose separation), and (2) if legislators have bases of political support independent of the president (mandate separation). Most of the work on strengthening legislatures focuses on the former, but my research suggests that the latter is just as, if not more, important. Separation of powers is inherently political, and thus can only be achieved through political independence.
The same logic appears to explain Kenya’s budding judicial independence. The country’s courts are far from perfect, but since 2010 they have been able to assert judicial independence from both the president and legislature.
The courts’ independence vis-à-vis the president is anchored in Article 171 of Kenya’s 2010 Constitution, which establishes the Judicial Service Commission (JSC). The JSC has the sole authority to nominate and initiate the removal from office of superior court judges, including justices of the Supreme Court. The judiciary is also financially independent from the executive. Article 173 of the Constitution empowers its Chief Registrar to submit its budget directly to the National Assembly for approval.
The president’s role in appointing judges is largely ceremonial. The JSC’s nominations for Chief Justice and Deputy Chief Justice are subject to parliamentary approval. All other judges are appointed upon recommendation by the JSC.
The president has previously tried to claw back appointment powers. But the courts fought back, affirming the JSC’s role as the sole appointing authority.
This is not to say that the president cannot influence the courts. He can intimidate judges through parliament, and has direct influence on three out of the 11 JSC commissioners. But his influence is indirect at best, which affords judges security of tenure. Their mandate is from the JSC, not the president.
This is the broad context for the Supreme Court’s bold ruling on Friday. Putting aside the specifics of this particular petition, the ruling was possible in part because a necessary condition of a constitutional separation of mandate had been met.
This is an important lesson for judicial reform efforts across the world. It is not enough to invest in the operational and jurisprudential competencies of courts. Judicial reform must also focus on granting courts real political independence.
What does this mean for Kenya’s democracy?
The rule of law and fidelity to set procedures are at the heart of democratic government. This ruling affirmed both loud and clear. By annulling Kenyatta’s reelection, the courts showed that not even the president is above the law. And in insisting that the rerun election be conducted in “strict conformity with the Constitution and applicable elections laws,’’ the court reinforced the idea of procedural fairness as a cornerstone of democratic government.
Both signals will serve to strengthen Kenyan democracy. In particular, the emphasis on procedural conformity sets a high bar for election quality in Kenya. It discredits the refrain that “despite irregularities the outcome reflected the will of the people,’’ a concept occasionally used to justify flawed elections around the world.
Going forward, Kenyan election integrity will be judged by conformity with the country’s electoral laws. This marks a major step forward in the institutionalization of political competition, and may be the beginning of the end of rigged elections in the country. Politicians may react to this by focusing on the country’s electoral laws to gain advantage over opponents. But even this would be an improvement from open rigging.
How does Kenya consolidate these gains?
At a minimum, the Oct. 17 election must be beyond reproach. That is the only outcome that will be acceptable to both Kenyatta and Odinga supporters. Odinga supporters feel vindicated by the Supreme Court, and will be primed to focus on any and all irregularities. Kenyatta supporters already “won,” and would be loath to see their victory reversed in a flawed process.
Thus, the IEBC has very little margin for error — which is Kenya’s biggest challenge over the next 42 days. Can Kenyans trust the IEBC to be a competent and impartial umpire? Is it feasible to reconstitute the IEBC before Oct. 17?
These questions raise both political and technical dilemmas. On the political front, the ball is in the court of Kenya’s political elites. Only they can decide on an agreeable political solution to the impasse created by the Supreme Court’s ruling.
The IEBC’s logistical deficiencies can be addressed through technical assistance from the private sector and international friends of Kenya. But as was evident on Aug. 8, technology is not a panacea. Kenyan political elites must first internalize the need to adhere to the country’s election laws. Only then can technology serve its rightful purpose of simplifying the process of recording and counting votes.
Ken Opalo is a professor of political economy at Georgetown University. He researches institutions and the political economy of development in Africa. He blogs at www.kenopalo.com. Follow him on Twitter at @kopalo.