THE declaration by Kenya’s Supreme Court that Uhuru Kenyatta’s victory in the presidential election last month was invalid and a that new vote will be held is a first in so many ways. It is the first time in Africa that a court has nullified presidential elections, nullified the vote of a sitting president, and the first time on the continent that an opposition court challenge against a presidential poll result has been successful. And it is the first time the winner of the elections says he accepts the court’s ruling.
At least for now, this election turnaround has not sparked public protests or outright violence, which could, if the dam doesn’t break, prove another first. It is a ruling once believed unthinkable and one that could embolden other courts on the continent to follow suit.
A six-judge bench ruled 4-2 in favor of petition filed by rival candidate Raila Odinga and ordered a new vote within 60 days after they announced that the election had not been "conducted in accordance with the constitution" and declared it "invalid, null and void". The court ruling did not attribute any blame to President Kenyatta's party or campaign. The court has not yet published its full written ruling explaining why the election was invalid but one of the most contested aspects of the election was the apparent discrepancy between the electronic results as transmitted and the manual count.
The decision is historic but also a massive indictment of the electoral commission. How could an election held on Aug. 8 be annulled 24 days later? More than three weeks is a long time to figure out a mistake was made — in a presidential election no less — especially since the initial results were not even close. Kenyatta was declared the winner by 54% to 45% for Odinga, a winning margin of 1.4 million votes.
This is also a setback for the international monitors from the EU, the African Union and the US who profusely praised the election as free, fair and credible. Among those who gave a positive assessment was former US Secretary of State John Kerry, who was the head of the Carter mission and whose appraisal of the election was used in court. So sure was Kerry that there was no major fraud on polling day that he urged Odinga to concede.
Violence in the wake of this repeat vote cannot be ruled out. After Kenyatta was declared the winner last month sporadic violence erupted in some areas, claiming the lives of at least 28 people nationwide. The rivals’ addresses after the ruling, though they appeared to have accepted the judges’ decision, did not augur well. Kenyatta branded the judges "crooks" while Odinga said he had no faith in the “rotten” system, questioning who will conduct the next elections. Kenya also has a history of post-election violence, experienced after presidential votes in 2007 and 2013.
Whatever the consequences of its decision, the Kenyan Supreme Court has made legal and political history in Africa. The case was an opportunity for the judiciary to truly show its independence after being viewed as being under government influence. Most African courts feel pressure from leaders; they have long been subservient to their presidents. But this ruling banished the equivocal reputation that long surrounded Kenya’s judiciary, establishing its authority as a genuinely independent and courageous arbiter over political disputes and a demonstration of the strength of its local institutions.
Regardless of the winners and losers following the ruling, this should be a proud moment for Kenya. The outcome of the election was ruled in court, not on the streets.
Equally, it could herald a new round of uncertainty and chaos. But for now it marks a watershed in the east African nation’s development into a functioning, modern democracy and sets a unique precedent for the continent.
