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Vol 58 No 21

Published 20th October 2017


Crisis? What crisis?

Our correspondents answer the most critical questions about the country's increasingly heated political contest

Is there a political crisis in Kenya? Would the involvement of foreign mediators help solve it?
On this issue there is stark disagreement between President Uhuru Kenyatta and opposition leader Raila Odinga. Kenyatta has been quick to reject the assertion that a constitutional crisis is looming. He said: 'There is no crisis and we are not interested in mediation.' For emphasis, 12 MPs from Kenyatta's Jubilee party have jointly written a letter reiterating this to the African Union, the European Union, the United Nations and the United States government.

Odinga, presidential candidate for the National Super Alliance (Nasa), insists there is a deepening crisis and that the governing Jubilee party is trying to scupper democratic reforms. He told Africa Confidential that there are no circumstances under which he would contest the repeat elections on 26 October: 'The 26th is a no deal, you can take that to the bank. The 26th will not happen, if it happens it will not be an election in the Republic of Kenya… there will not be credibility.'

Odinga appears to concur with Kenyatta over international mediators but has invested considerable time and energy in an international tour to win overseas opinion. Outside involvement isn't necessary to resolve the dispute, Odinga told the Chatham House think tank in London on 13 October, the solution is in the hands of Kenya's Independent Electoral and Boundaries Commission. He demanded access to all digital records at the commission which he insisted would show vote-fixing by its officials. 'The IEBC should open the servers,' he demanded.

How did this current electoral dispute start?
Kenya held a general election on 8 August, that is elections for the national president, parliament and senate as well as elections for 47 county governors and their administrators and local governments. Opposition contenders in Nasa and some smaller parties claimed there were gross breaches of electoral law in the vote counting and tallying.

When the IEBC declared that Kenyatta had won the presidential contest with 54% of the vote, Nasa submitted a petition challenging the result to the Supreme Court. Earlier Nasa leaders had said there would be little point in making a legal appeal because the judges would be pressurised by the government to endorse the result.

To general surprise, on 1 September, the Supreme Court annulled the presidential vote citing 'irregularities' and 'illegalities' and ordered a fresh election to be organised within 60 days. The Court, chaired by Chief Justice David Maraga, asserted that the IEBC had not properly checked digitally-transmitted results against the ballot papers and tallying-sheets in counting centres across the country. But the Supreme Court did not specify what actions the IEBC should take to ensure the rerun elections complied with the law.

How did the electoral commission, the candidates and election observers react to the Supreme Court's annulling of the presidential vote?
The IEBC said after the Supreme Court ruling that it would organise a rerun of the presidential vote on 17 October, later postponed to 26 October for logistical reasons. It appointed Marjan Hussein Marjan as lead coordinator for the elections as well as new heads of department for Information Technology, Legal Services, Logistics, Operations, the National Tallying Centre and Training. IEBC Chairman Wafula Chebukati said one official, much criticised by the opposition, would be sacked. But a memo sent on 7 September by Chairman Chebukati, raising critical questions with the IEBC's Chief Executive Ezra Chiloba, pointed to sharp differences among its top officials.

Angered by the Supreme Court ruling, President Kenyatta said the government disagreed with it but respect it. Later, on the campaign trail, Kenyatta called  the Supreme Court judges 'wakora' or 'crooks' in Kiswahili, describing their action as a 'judicial coup.' Having earlier doubted the Supreme Court's political independence, Odinga and Nasa now praised the judges' courage then announced an 'irreducible list of minimum demands' for reform, mainly targeting the IEBC. These include the sacking of several election officials.

After the Supreme Court ruling, some election observers, such as the United States' John Kerry, explained they had not endorsed the arithmetical tabulation of results but just the observed processes of voting and logistical arrangements. The head of the European Union's head electoral observer, Marietje Schaake, told AC that she had not endorsed the transmission of electoral results or deemed the voting process free and fair.

Why did Raila Odinga withdraw from the rerun of presidential elections scheduled for 26 October?
On 10 October, Odinga announced that he and his running mate Kalonzo Musyoka would not participate in the rerun because of the IEBC's failure to meet their demands for electoral reform. 'There is no point in going to an election where the outcome has already been determined,' Odinga said. 'The new election will be as corruptly conducted as last month and its outcome will in no way represent the will of Kenyans.'

Odinga's demands include: the appointment of new executives at the IEBC; stricter rules on the use of technology in vote tallying and transmission of results; that the IEBC should announce the GPS location of the 40,000 plus polling stations; new returning officers should be appointed in all 290 constituencies; independent international experts should manage all the ICT functions of the election under the close supervision of the political parties' agents and the IEBC. All this could be done and fresh elections should be organised within 90 days, says Nasa.

What is the IEBC response to Odinga's demands? Is the IEBC ready for elections on 26 October?
The IEBC insists it is trying to meet the concerns of the Supreme Court and opposition parties. However, its meetings with opposition leaders have not produced any agreement. It says it will sack any officials found guilty of misconduct and has dismissed over 200 presiding officers who made errors in the 8 August elections.

But it insists the demands for a new executive leadership of the IEBC – including the Commissioners and the Chairman – prior to the 26 October election are impractical under the constitution because new appointments take at least three months to finalise. A shortlist of commissioners, based on gender and ethnic representivity, has to be drawn up, approved by parliament and then the President.

The IEBC says it is ready for rerun elections. Its Chairman Chebukati says: 'There is no room for errors.' New officials have been trained to remedy the problems identified by the Supreme Court, he added, dismissing reports that he or any of the Commissioners are going to resign.

The ballot papers will be printed by the same company that printed the ballots in the August election – United Arab Emirates-based Al Ghurair – at the end of the week-ending 21 October. But numerous legal cases over which names go on the ballot could delay this. The IEBC faces another politically-charged problem: the lack of officials willing to work in polling stations in opposition strongholds because of fears of violence if there is an election boycott.

Are President Kenyatta and Jubilee willing to negotiate with Odinga and Nasa about conditions for a fresh election?
Kenyatta's advisors have told AC that there is nothing on which to negotiate. They say the IEBC is respecting the Supreme Court's call for fresh elections within 60 days of its ruling on 1 September. The call for negotiations is an opposition tactic, say the advisors, to create the appearance of a political crisis so the opposition can get into power-sharing talks. Jubilee says it's confident of a massive victory for Kenyatta if elections go ahead on 26 October although senior officials concede that voter turnout will fall, particularly in opposition-supporting areas.

Why is the parliament amending laws governing the next election? Is this legitimate under the terms of the constitution?
The Jubilee caucus which controls well over half the seats in parliament amended some important clauses in the electoral laws on 11 October. The amendments include a provision making it harder for the Supreme Court to annul elections: the judges would now have to cite both quantitative and qualitative flaws in the elections. In its 1 September ruling, the Court said that its finding that the election management wasn't in compliance with constitutional stipulations was enough to annul the elections. It said the petitioners did not have to prove that this affected the final election result.

Other amendments stipulated that if one candidate withdraws from a rerun or second round of the presidential election, the other one automatically wins; that the commissioners at the IEBC can elect a new Chairman; that fewer IEBC commissioners are required to make meetings quorate.

Jubilee insist that its MPs were elected legitimately and are entitled to amend electoral law accordingly. President Kenyatta will sign all these amendments into law. Nasa says that it is doesn't regard parliament as legitimately constituted as it is challenging the election of several Jubilee MPs. Meanwhile, Nasa's MPs are boycotting parliament currently and didn't attend the debates over the amendments.

How many candidates are on the ballot for the 26 October rerun elections?
Eight candidates fought the 8 August presidential election. After the Supreme Court annulled that election, the IEBC said only the first two candidates – Kenyatta and Odinga – would be on the ballot for the rerun. But Ekuru Aukot, on the Thirdway Alliance ticket, appealed against that decision. On 11 October, the High Court in Nairobi ruled in his favour and the IEBC is putting seven candidates on the ballot on 26 October.

The candidates are: Kenyatta, Odinga, Aukot, Abduba Dida, Joseph Nyagah, Michael Wainaina and Japheth Kaluyu. Nasa, which doesn't want Odinga's name on the ballot, says the High Court ruling contravenes the constitution which stipulates that candidates in a national election should have at least 21 days to campaign. Aukot and the other four candidates from the smaller parties will have just 15 days to campaign before the rerun.

Will President Kenyatta's term expire if fresh presidential elections are not held before 1 November?
Attorney General Githu Muigai says that if the IEBC has not organised a new presidential election then Kenyatta stays in the post. Nasa refutes this and says that Kenyatta's term will expire 60 days after the Supreme Court ruling, on 1 November. Constitutional experts are divided on this point, with the matter likely to be tested in court if new elections are not held before 1 November. That explains the IEBC's eagerness to hold the vote on 26 October.

How has this prolonged uncertainty affected Kenya's economy?
Politicians argue about how badly the economy has been hit by the election dispute, but pressure from local business to solve the political impasse is likely to grow. Jubilee officials say the main damage has been caused by opposition demonstrations; Nasa activists say that businesses are holding back because of fears over more political trouble.

The economy has slowed down since the first round of elections. Central Bank governor Patrick Njoroge, attending the International Monetary Fund meetings in Washington DC, said the government might have to revise downwards its projections for 5.5% growth this year but insisted the economy 'has not gone over the cliff.'

Shares on Nairobi Stock Exchange have fallen faster than anywhere else in Africa since the annulling of the election and yields on Kenya's Eurobonds have gone up to 6.43%, a rise of 41 basis points. For now, it is the smaller traders in city centres that have been most damaged by the dispute.

There are growing concerns about the effects of the drought which is affecting at least 2.7 million people and will put additional strain on the national treasury and living standards in the months ahead.

Will opposition protests go ahead?
The opposition's campaign of street protests is likely to escalate in the days before the repeat presidential election. Two people were shot dead in Bondo, Odinga's home town, on 13 October after a group of activists tried to storm a police station. There were also clashes in Nairobi, Kisumu and Mombasa as protesters defied a ban on demonstrations introduced by Interior Minister Fred Matiang'i on 11 October.

At a rally in Mombasa on 15 October, Odinga urged his supporters to 'come out in large numbers tomorrow like you have done today and fear no-one. This is your country and you have the right to protest.'

What happens next?
There will be a flurry of court hearings on the elections. The IEBC wants to clarify the effects of Parliament's amendments on its operations. Nasa is going to the Supreme Court to challenge the validity of the High Court's ruling putting Aukot and the smaller parties on the ballot for 26 October. It also wants to challenge the schedule for the rerun.

Odinga said he would contest elections only when Nasa's demands for reform were met, adding that his supporters, in areas such as Nyanza, Western and Coast provinces and Nairobi, want a boycott of the 26 October rerun. Should such a boycott gain wide support, Nasa could argue the rerun – and Kenyatta's presumed victory – will lack legitimacy. The constitution stipulates that a presidential election must be held in all 290 constituencies.

Our correspondents are working on a comprehensive analysis of the latest developments and prospects for resolving the political dispute in Kenya. Look out for the next issue of Africa Confidential, online 19 October.

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