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Vol 58 No 22

Published 3rd November 2017


A question of legitimacy

President Uhuru Kenyatta starts his second term facing street protests, legal challenges to his election, and deep divisions in the electoral commission

Neither side in the over-heated election row looks ready to talk, let alone negotiate. Taking a shot at his opponents for representing the 'politics of darkness' and accusing them of double standards, President Uhuru Kenyatta used his victory speech on 30 October to assert his legitimacy with a barrage of voting statistics. However, he conceded that his victory was likely to be 'subjected to a constitutional test through the courts'. Kenyatta won 98% of the vote on a 39% turnout in the re-run presidential elections on 26 October – the lowest turnout in Kenya's history. Turnout in the annulled presidential election of 8 August was 79%.

There was no mistaking popular feeling in Western Kenya about the re-run of the presidential election. Outside a polling station in Kisumu, a stronghold of Kenya's National Super Alliance (Nasa) opposition coalition, three iron bars had been welded onto the gate leading into Pandpieri Primary School, a polling station, preventing anyone from getting in.

The central business district of Kisumu – the most populous Luo-majority city – was a ghost town. Shops were shuttered and only a handful of people had gathered in small groups in the shade. Nearby, young men congregated around roundabouts, setting up roadblocks and burning tyres.

At Kisumu Boys' School roundabout in the centre of town, Paul Esilaba, 31, stood over his bicycle as stones blocked the road and tyres burned. 'Raila must be President,' he said. 'Kenya is not only for Kikuyus and Kalenjins.' Fear is growing that the battle over political reform could quickly take an ethnic twist and lead to violence as severe as that which followed the 2007 elections.

The Independent Electoral and Boundaries Commission managed to deliver ballot papers to the tallying centre for Kisumu Central just down the road at Lion's High School, but were unable to send them out from there to 196 polling stations, the IEBC said.

The IEBC's John Muyekho said his staff were afraid to show up at polling stations, as were the owners of vehicles designated to transport the ballot papers. 'If you want to die in Kisumu, carry a box of ballot papers into a polling station,' one official said. The IEBC had to abandon the vote in 25 constituencies in the western counties of Homa Bay, Kisumu, Migori and Siaya. A new election was called for 28 October, but soon cancelled.

Nasa's game
Musalia Mudavadi, the architect of the Nasa coalition and one of its co-principals, said 'The election is a sham. It is an embarrassment and the IEBC has no leg to stand on.' Mudavadi had estimated the turnout, before the official figure was published, at 4 million, or 20%, and Raila Odinga put it at 3.5 mn. or 18%.


The next step for Nasa is to challenge the validity of the election in the Supreme Court. The constitution says voting must take place in all 290 constituencies. Jubilee's argument will be that so long as every voter had an opportunity to vote the election was valid, and so the poll result should stand. Nasa will point to IEBC's failure to deliver ballot papers in many areas as evidence that voters did not have that opportunity, and that the poll was unconstitutional.

Nasa wants another election to be held within 90 days, but Deputy President William Ruto poured cold water on that prospect on 29 October, saying there was no room for discussion of new elections.

Nasa is digging in for the long haul, having announced the formation of a 'national resistance movement' at a rally in Nairobi's Uhuru Park on the day before the poll, when Odinga called for a 'national campaign of defiance'. He said the NRM will wage an economic boycott on companies seen as linked to the Jubilee elite, such as Safaricom, Equity Bank and the Nation Media Group. Jubilee has been quick to slam the NRM for dangerously escalating ethnic tensions. Martin Kimani, the Chief of the National Counter-terrorism Centre, said the movement masqueraded as 'civil disobedience' but in fact 'prompted rioting and violence'.

The Supreme Court, which ordered the re-run on 1 September, will sit have to sit again to rule on the validity of the latest election, albeit it in a more hostile atmosphere. At an eleventh-hour meeting on 25 October on whether or not to postpone the election not enough judges turned up to make a quorum. The night before, on 24 October, a gunman shot and wounded the driver of the Deputy Chief Justice, Philomena Mwilu, in what was seen as an attempt to intimidate other judges. Jubilee supporters have been ramping up rhetoric against them ever since the ruling to run the poll again. Odinga alleged, 'They want to destroy all government institutions so that they govern this country in dictatorship. But Kenyans will not accept.'

Several petitions on the presidential elections are still going through the court system at the level of High Court, Appeal Court and Supreme Court. Now the courts will have to set a new schedule amidst heavy pressure from all sides.

Sins of commission
So far, the institution most damaged by the election imbroglio has been the IEBC. In an interview with AC, former Electoral Commissioner Roselyn Akombe, who resigned a week ago, painted a picture of a badly divided commission: 'I don't think the commission has ever been non-partisan. The ones who ended up being selected are not the ones who scored highest in the interview. From the very beginning it was either people who felt that Nasa defended them in order to get their positions or who felt that Jubilee had defended them.'

Akombe saw little prospect of IEBC fixing the problems in time: 'For me, unless you do something really miraculous in that commission, there's no way we're going to have a free election… I reached out to Jubilee after the Supreme Court ruling on 1 September. I said we need to do something different in terms of our personnel. We need to make some changes, even if that means asking for leave. They were opposed to it,' Akombe said.

'At one point [Jubilee] came back to me and said, "I'm told that we are not opposed to [the IEBC's Chief Executive Officer Ezra Chiloba] leaving, as long as you have consensus". But then …they would go to each commissioner and tell them, "Ezra is not going anywhere".  For them their tactic has always been: in public they look like they don't care about these things. But they go around and they give instructions directly to each of those commissioners.'

Police violence
Civil society organisations including Amnesty International and Human Rights Watch have voiced concerns about police brutality and excessive force against Nasa supporters in Nairobi's slums and in western strongholds. Mudavadi accused the Jubilee government of 'ethnic profiling' and 'genocide' against people in western areas. 'From the time the results were annulled on 1 September […] there are close to 70 deaths,' he said. Western diplomats say that 11 people have been killed since Thursday's election, including two police officers.

Kimani counters that Nasa's anti-election rhetoric incites violence. 'We have had a lot of riots that have been couched as demonstrations,' he said. 'The pattern has been: a prominent leader stands up and says something, a few hours later, young men and women riot in the name of demonstrations – and indeed there are some demonstrations going on – and then the police are forced to face off with the rioters.'

Jubilee challenge
Kenyatta has a long road ahead to make amends with huge swathes of the country that did not take part in the 26 October election. About 12 million registered electors did not vote, and many of them feel locked out of the electoral system.

Mudavadi said: 'Where is [Kenyatta's] legitimacy? When you are somebody without legitimacy you will expect people will not respect your authority. There will be civil disobedience […] you will be ruling more by authoritarianism rather than the will of the people.'

Jubilee officials say the country's devolved government will help calm tensions. 'The government at different levels is run by Nasa stalwarts and they have a key stake,' said Abdikadir Hussein Mohamed, one of Jubilee's top legal strategists. The government has also gone on a media blitz to paint the current situation as the backfiring of Odinga's last-ditch strategy to capture power.

Deputy President Ruto, a front-runner for the presidency in the 2022 election, has been dispatched to give interviews on international television channels where he has trumpeted this line. Ruto blamed violence on opposition supporters and vowed that no more elections will be held. 'Mr. Odinga knew for sure if these election materials got to the polling stations, as it did in two constituency in Nyanza, people will vote,' Ruto told Al Jazeera English. 'He organised militia to erect barricades and prevent election officials and materials from getting to polling stations.' Ruto was also adamant that Nasa's demands for a fresh election would not be met.

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