A week before Kenya’s August 8 presidential election, the mutilated body of Chris Msando, head of software for the country’s chief electoral body, was found in a ditch outside Nairobi. His autopsy revealed that he had been tortured before dying of strangulation. That the man who held the passwords to Kenya’s digital voter logs should be tortured and murdered on the eve of the election fueled intense speculation in an already-charged political climate that the incumbent President Uhuru Kenyatta intended to fix the upcoming election.
Remarkably enough, Msando’s grisly murder proved to be only the second most shocking development of Kenya’s election season: On September 1, the soft-spoken chief justice of the Supreme Court, David Maraga, announced that he was nullifying the results of the August 8 poll, which Kenyatta had handily won, citing widespread irregularities in the vote tallying process. Commentators quickly pointed out that this marked the first instance in African history when an independent judiciary had successfully overturned a presidential election. The heretofore victorious Kenyatta—a man who once stood up the International Criminal Court—had no choice but to accept the call for a do-over as thousands of Kenyans took to the streets in celebration. Opposition figures and democracy activists from Angola to Zimbabwe cheered for Kenya, hopeful that Maraga’s decision would be a harbinger of progress across a continent still predominantly characterized by its entrenched autocracies.
But the situation is hardly straightforward. Kenyans now face a probable constitutional crisis and the presidential candidates involved have a history of employing violence to satisfy their political ambitions. Remote as Kenya might seem from our perspective, what happens next is of international consequence. Any instability in Kenya will hurt the very real progress that multinational efforts have made against Al Shabaab militants in the Horn of Africa (where Kenya has deployed thousands of troops), while investors are keen to see East Africa’s largest economy avoid the type of political shocks that in the past have hurt its foreign investment. More importantly, anyone who wishes to see democracy flourish globally should hope that Kenya can capitalize on this historic possibility by moving forward with free, fair, and peaceful elections.
For the time being, however, all we can do is wait and see. Most Kenyans have enjoyed their moment of spontaneous celebration and have returned to doing what has become standard practice ahead of Kenyan elections: preparing for the worst.
A History of Electoral Violence
Despite the efforts of several upstart politicians to get on the ballot, this year’s election was never anything more than a contest between the incumbent Kenyatta, an ethnic Kikuyu, and perennial challenger Raila Odinga, an ethnic Luo. Neither one make any effort to veil their sense of entitlement (and only minimally more to hide their corruption) as scions of rival political dynasties whose feud dates back to Kenya’s independence in 1963.
This year marks Odinga’s fourth shot at the presidency. He had previously run against Kenyatta in 2013 and against Kenyatta’s predecessor and mentor, Mwai Kibai (another Kikuyu), in 2007. That year, Odinga refused to accept the genuinely suspect poll results and chaos ensued. The longstanding grievances of Odinga’s base against the perceived Kikuyu political and business elite reached terminal velocity. Massacres begot counter-massacres, politicians (including Kenyatta) funneled money into ethnic militias, and police units broke down along ethnic lines and joined the fray. In the end, between 1,200 and 1,500 Kenyan civilians lay dead according to official estimates, though most Kenyans insist the real figure is at least twice as high.
This history weighed heavily on the minds of Kenyans throughout the past election season. While there this spring, I encountered two strikingly divergent attitudes. Among less developed communities in the slums and countryside, people seemed enthusiastic and confident about their candidate’s chances. Emotions over 2007 were still palpable, and should the other side win, I was told, it would only be because they had rigged the election. These people were among Kenya’s poorest citizens, and they identified strongly with their ethnicity. They seemed to have little to lose and many said they would be willing to fight for their candidate if necessary.
By contrast, when speaking to better-off or more generally cosmopolitan Kenyans, many, including Kenyatta supporters, admitted rather sullenly that he would rig the election in one way or another. Their primary concern was avoiding bloodshed and keeping businesses running. Liberal democracy is a fine goal for Kenya to ultimately strive for, they conceded, but why risk their country’s precarious security and hard-won economic progress over one election?
The Judiciary Flexes its Muscle
When the Independent Boundaries and Electoral Commission (IEBC) declared Kenyatta winner by 1.4 million votes on August 8, Odinga responded as expected: Refusing to accept the results, he announced a nationwide sit-down strike. Thousands of his supporters answered the call, but only in a few opposition-dominated communities. Fewer than 50 Odinga supporters were killed in protests when they met the type of heavy-handed response you would expect from a police force that has one of the worst records of extrajudicial killings in Africa. Businesses in Nairobi opened back up after a few days and the country returned to normalcy. Odinga’s “resistance” was less effective than he had hoped, but most Kenyans were simply relieved that they had not had to relive the nightmares of 2007.
The Supreme Court’s nullification three weeks after the election therefore took everyone by surprise, but their reasoning was sound: The IEBC had been inexcusably negligent in verifying results from the country’s 40,883 polling stations, a process which was made more difficult by the fact that the commission’s server—previously managed by the deceased Chris Msango—happened to crash on election day. Chief Justice Maraga stopped short of accusing the commission of intentional fraud, but to Odinga and his supporters, the court’s decision was all the evidence of Kenyatta’s thievery they needed. A new poll, the Supreme Court declared, will be held on October 17 (since pushed back to October 26) and the official results must be announced by October 31 or else—well, that’s what no one is really sure about.
What Now?
Kenyatta’s reaction was churlish. After initially accepting the court’s decision and delivering a polished address in which he urged Kenyans “to be people of peace”, the incumbent president switched footing later that same day, labeling the Supreme Court “crooks” who had “overturned the will of the people” and were “paid by foreigners and other fools.” He has since vowed to “fix” the Supreme Court and assured his supporters that even if Odinga were to somehow win the new poll, the longtime opposition leader would immediately be impeached.
Odinga, for his part, is not much happier with the current plan for new elections. “We cannot do a mistake twice and expect to get different results” he has said of the IEBC. His opposition coalition has declared that they will boycott the new elections unless all senior members of the IEBC are replaced, an unrealistic demand given the years of negotiations it took to create the commission following the 2007 fiasco. The opposition’s recent decision to boycott parliament so long as Kenyatta is acting president only makes the prospect of forming a new electoral body more unlikely. Cognizant of these procedural challenges, Odinga recently called on his supporters to forcefully evict the undesired commission members. When his supporters gathered at the IEBC offices on Tuesday, they were met with police tear gas. All throughout, Odinga has maintained that the only way he could possibly lose the new poll is if it is rigged.
As if these challenges were not sufficient to put the new elections in jeopardy, the French firm that provides the voting software has said that they will not be able to complete the reinstallation by the October deadline. Then this past weekend, the country’s chief prosecutor made the much anticipated announcement that he had ordered the police to open up an investigation into the IEBC’s handling of the election.
So here we are. Kenyans are in the awkward position of being cast as champions of African democracy in Western media while they themselves struggle with the practical questions of an impending constitutional crisis. Many Kenyans feel genuine pride in their country at this moment. There is a sense that some grave injustice has been corrected. Nevertheless, Kenyan politics is hyper-partisan, and a significant segment of Kenyatta’s base feel betrayed by a group of judges in Nairobi whom they had never heard of before this month. Such sentiments can be truly dangerous in a country where partisan politics means ethnic politics and political elites know from experience that instigating violence can further their political careers without provoking tangible consequences from the international community. Few Kenyans trust the police, and the military—traditionally seen as a bastion of professionalism among African armed forces—has shown signs of politicization in recent years, complicating the question of who will maintain order if conflict breaks out. All that is clear is that a nauseating mix of excitement and anxiety presently grips the country and the situation could change dramatically at any moment.
There is a Swahili proverb that goes, “You can’t tell the difference between sugar and salt until you’ve tasted it.” Kenyans have always lived in a society with some democratic appearances; it’s only now that they are getting their first taste of the essence of democracy.
James Barnett is a researcher at the Hudson Institute specializing in national security, Africa, and the Middle East. He was a Boren Scholar in East Africa in 2016-2017. You can follow him on Twitter @jbar1648.
