Court in transition: Kenya’s contested presidential election

A dispute over Kenya’s recent presidential election threatens the country’s political stability. Europeans should respect the election result and support a peaceful resolution of the situation in the courts.

August 22, 2022, Nairobi, Kenya: Azimio la Umoja presidential candidate Raila Odinga surrounded by his supporters clenches his fist as a sign of freedom after filing the election petition challenging the presidential results of the just concluded general elections held on 9 August 2022 in Kenya. Raila Odinga, presidential candidate of the Azimio La Umoja One Kenya coalition has filed a petition at the Supreme Court registry to challenge Kenya’s presidential election results. William Ruto of the United Democratic Alliance (UDA) who was declared president-elect by the Independent Electoral and Boundaries Commission (IEBC) Chairman Wafula Chebukati on 14th August 2022. (Credit Image: © Boniface Muthoni/SOPA Images via ZUMA Press Wire
August 22, 2022, Nairobi, Kenya: Azimio la Umoja presidential candidate Raila Odinga surrounded by his supporters clenches his fist as a sign of freedom after filing the election petition challenging
Image by picture alliance / ZUMAPRESS.com | Boniface Muthoni
©

Kenya’s vice-president, William Ruto, is the declared winner of his country’s recent presidential election, having received 50.5 per cent of the vote. However, four senior members of the country’s election commission have rejected the official outcome of the contest, citing an “opaque” result. Former prime minister Raila Odinga, who won 48.5 per cent, claimed that the election was “null and void”, while his running mate, Martha Karua, stated on Twitter that “it is not over till it is over”. This caused riots to break out in various parts of the country – although the mood has since calmed. Odinga has now filed a presidential petition with the Supreme Court of Kenya alleging voter fraud. He cites evidence ranging from a suspicious laptop and allegedly falsified ballot papers to the arrest of foreign nationals with access to the election’s digital infrastructure.

Such disputes are a sad but predictable feature of Kenyan elections. In each of the past four presidential votes, Odinga has challenged the result, leading to political instability. In 2007 post-election violence killed more than 1,000 people; in 2017 clashes with the police led to more than 50 deaths. This year’s election was unique in that Odinga received the endorsement of outgoing president Uhuru Kenyatta, who had fallen out with Ruto. As a consequence, the contest was between a political dynasty and a self-styled “hustler” rather than – as in previous elections – ethnic groups: while Odinga’s and Kenyatta’s fathers were Kenya’s first vice-president and president respectively, Ruto is a successful businessman and a first-generation politician.

The support of the established political elite strengthens Odinga’s position, making a protracted legal battle likely. It is possible that the Supreme Court will order a new election, as it did in 2017. But a long and uncertain resolution process would come at an unfavourable time: Kenya needs a functioning government to respond to rising food and energy costs, high youth unemployment, and drought in its northern regions. As an economic and political hub in east Africa, Kenya plays a vital role in mediating regional conflicts, contributing to stabilisation missions, and hosting refugees. For the rest of the world, especially the European Union, the country is a crucial bilateral and multilateral partner.

Recognising the importance of the 2022 election, the EU sent a mission to observe the vote. In its preliminary report, the mission found that “fundamental freedoms [were] respected in Kenya’s general elections, but procedural shortcomings demonstrate the need for improvements”. Although the contest was significantly more peaceful and orderly than the 2017 election, last-minute procedural changes and the dissent of senior officials have overshadowed its result. This is why Western leaders have been cautious about recognising Ruto’s win. Instead of congratulating Ruto, Europeans and the United States have merely noted the result and called for calm in their statements.

This highlights the challenge European officials and diplomats currently face in reacting to the fluid post-election situation. By holding back from full recognition, they risk souring relations with a future president and opening themselves to accusations that they favour his opponent. Ruto is already weary of Western countries and their influence, having been involved in an International Criminal Court case centred on post-election crimes against humanity allegedly committed between 2007 and 2008.

But a full endorsement of Ruto now could create problems of its own if the Supreme Court struck down the election result. At a time when Russia’s war on Ukraine has created growing tension between African and Western countries, European leaders have a particularly strong interest in maintaining a good relationship with east Africa’s most powerful state. Kenya is an influential member of regional organisations such as the African Union, the Intergovernmental Authority on Development, and the Common Market for Eastern and Southern Africa. Kenya’s geopolitical importance is reflected in the fact that China has invested heavily in Kenyan infrastructure and Russia has provided financial support to the Kenyan authorities, most recently in the healthcare sector.

Therefore, the EU and its partners should continue to back the judicial process by, for example, sharing data from its observation mission – which includes analysis of election technology and social media – with the Kenyan authorities. At the same time, they need to maintain their neutrality and avoid accusations of interference. Foreign ambassadors played vital and constructive roles in mediating previous post-election disputes, but they should hold back in this case – especially given that, so far, the situation has been mostly peaceful.

The fact that Kenyatta did not try to run for an unconstitutional third term bodes well for Kenyan democracy

The judicial process is the only mechanism that can truly resolve the dispute over the election result. The Supreme Court proved its worth in 2017 when it invalidated Kenyatta’s victory and ordered a second vote, before repeatedly ruling against him in other cases. As such, there is cause for optimism that the court’s decision will be widely perceived as fair.

Nonetheless, Odinga – in what is his fifth and probably final attempt to become president – may stubbornly refuse to concede. After withdrawing from the re-run of the 2017 election, he declared himself the “people’s president” (although he joined forces with his main rival shortly after). This time around, a last-ditch attempt to challenge the court could lead to further polarisation and violence.

However, Kenya has come a long way since its disastrous 2007 election, having implemented constitutional and institutional reforms that created legitimate mechanisms to resolve electoral disputes. The fact that Kenyatta did not try to run for an unconstitutional third term bodes well for Kenyan democracy. And the candidates’ focus on socio-economic issues in this year’s election has made ethnic conflict less likely. So has the fact that neither Ruto nor Odinga is a member of the largest ethnic group. Moreover, electoral violence prevention projects supported by the EU have contributed to the peaceful conduct of the vote.

In all, the EU and its partners should continue to support a peaceful transfer of power. If Kenya’s next president is to tackle the many issues facing the country, he will need to enter office with a mandate recognised by not just Kenyans but also the international community.

The European Council on Foreign Relations does not take collective positions. ECFR publications only represent the views of their individual authors.

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