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The judges who defied the president: why Kenya’s election is being rerun

The supreme court ruling was unprecedented in Africa.

It’s a rare thing for a judge to become a folk hero, and rarer still for one to defy a president and overturn an election result – but that is what happened in Kenya last month. On 1 September, Chief Justice David Maraga – ascetic, God-fearing, 66 years old and with a perpetual look of mild amusement – declared President Uhuru Kenyatta’s 54 per cent victory in the August election to be “invalid, null and void”. The election commission was blamed for mishandling the presidential poll so badly (it was “neither transparent nor verifiable”) that it is scheduled to be run again on 26 October.

When Kenyatta won his first term in 2013, his opponent – then as now – was Raila Odinga, who alleged fraud and challenged the result at the supreme court. Odinga’s case was denied, confirming the public’s resigned expectation that the judiciary does the executive’s bidding. So when history failed to repeat itself this summer, there was shock on both sides and wild celebration on one.

In Kibera, a teeming, poor neighbourhood of Nairobi where Odinga is hugely popular, the joy was spontaneous and idiosyncratic. As I arrived, a man raced down the road on a motorbike, dressed in a gorilla suit and doing a kind of rising trot in his seat, honking his horn while leafy branches attached to the pillion dragged on the tarmac behind. After him came the Incredible Hulk. At the busy Olympic Junction, there was a gridlock of dancing, weeping, shouting and praying Odinga supporters. The riot police – who had been deployed with their shields, batons and tear gas in expectation of trouble when the supreme court rejected Odinga’s petition – surprisingly backed off, leaving the celebrants to it.

Someone had found a five-day-old newspaper with Maraga on the cover, dressed in his black-and-red robes with wing collar and dangling bands, and held it aloft. “He’s an African hero!” cried a man in the thick of the scrum. “Maraga is a great, great man,” a woman told me as she marched by.

Outside Kenya, too, the decision by Maraga and his five fellow judges was praised. Across Africa presidents have learned to bend democracy to their will, using constitutional amendments, intimidation and ballot-stuffing to stay in power while holding the kind of regular elections that Western donors like to see. Indeed, foreign observers had said that the voting process in Kenya on election day was credible, though they had failed to pronounce on the tallying where things went awry.

The supreme court ruling was unprecedented in Africa – but it is no quick fix for Kenya’s political malaise. The country has played the part of optimistic bellwether before. In 2002, voters finally rid themselves of Daniel arap Moi, an ostentatiously venal president who ruled the country for 24 years. They spurned his anointed successor (Uhuru Kenyatta, as it happens, the son of the country’s first president, Jomo Kenyatta) and chose Mwai Kibaki instead. Kenyans hoped that they had at last escaped the cycle of graft and tribalism. But corruption came to define Kibaki’s two terms and the political violence that followed his disputed 2007 re-election, in which more than 1,100 people died, scarred his presidency.

“The people who took us almost to the brink [in 2007-08] were the same guys who had stood up against Moi, and said all those good things, and then behaved really atrociously,” says Patrick Gathara, a cartoonist and curator of the online magazine the Elephant, whose blog astutely observes Kenyan mores. “People realised nothing had changed, and we’ve never really been able to recover from that.”

The short-termism of electoral democracy is at odds with the long game of political reform. Few look fondly on the Kibaki years, but it was during his second term that Kenya got the new constitution, in 2010. It was designed to address the winner-takes-all nature of presidential politics and, in both 2013 and this year, has shown signs of doing so – and it laid the foundation for the supreme court’s power to annul the election.

In Kenyan politics, however, hope is fleeting. After the initial surprise and exuberance, the response to the court ruling has proved partisan, pushing Kenya into deeper crisis. Odinga, who is 72, insisted that election officials be sacked and on 10 October withdrew from the rerun when his demands were not met. He hopes to force a cancellation of the vote, rather than it going ahead without him. For his part, Kenyatta feels cheated by unelected, unaccountable judges.

As long-time rivals and political leaders of their respective communities – Kenyatta for the Kikuyus and Odinga for the Luos – both men are drawing from deep wells of ethnic and personal anger. Their rhetoric since the court decision has become increasingly belligerent and dangerously divisive in a nation where political battles are often fought along tribal lines.

Since August, firebrands on both sides have been charged with hate speech. Diplomats in Nairobi are more wary of potential violence now than they were ahead of the initial vote, a relatively peaceful election by Kenyan standards in which, nonetheless, around two-dozen people died.

Kenyatta pledged to abide by the court decision and stand for re-election this month, but he has also denounced the judiciary. Hours after Maraga read the ruling, Kenyatta called the judges a bunch of wakora (“crooks” in Kiswahili) during an impromptu speech from the sunroof of a four-wheel drive close to a beer-and-barbecue joint in Nairobi, where he had been socialising with the regulars. He has promised to “fix” the courts and accused them of “a judicial coup” subverting the will of the people.

But it is not the courts that need fixing. “The fundamental problem in Kenya is this failure to deal with the state, to fix it, and it keeps fucking us up over and over and over again,” says Gathara. He worries that his fellow Kenyans have become so inured to corruption and self-serving political leaders that it is getting hard even to imagine something different. “It’s got to the point where we think we can’t change it. Everything we have tried seems to fail.” 

This article first appeared in the 12 October 2017 issue of the New Statesman, How May crumbled

Marc Brenner
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Carey Mulligan is oddly unemotional in Dennis Kelly’s powerful new play, Girls & Boys

If you intend to see Girls & Boys, don’t read this review.

If you intend to see Girls & Boys, then you should do two things. First, come back to this review: it’s a production best seen with no preconceptions. Second: have a child.

Still here? Good, because there is no way to discuss this play without spoiling its big reveal. It opens with Carey Mulligan centre stage, in orange shirt and red trousers, against set designer Es Devlin’s boxy backdrop of purest cyan. It’s a palette favoured by Hollywood posters, because the contrast is so striking. (Van Gogh once used it on a still life of crabs.) Mulligan’s unnamed narrator tells us how she met her husband, who is only ever “he”. Her monologue starts off funny – “Paris? Call that a world city? It’s Leeds with wider streets” – and sexually frank, but it’s also cleverly disconcerting.

She met him in an Easyjet queue and “took an instant dislike to the man”. Why? Because he was obliviously buried in a book – or because of his interaction with two models, who tried to queuejump by feigning sexual interest to stand next to him? (“And he’s just like, well of course… but I get to sleep with one of you, right?”) One of the models snottily tells him that she would never sleep with a Normal like him, and he acknowledges the truth of this. Then he calls them “bitches” for playing with his feelings, makes a chivalrous speech about the transcendence of loving sex, and suggests that sleeping with them would be “necrophilia… wanking into a pretty dress”. The temptation is to cheer – he put those stuck-up cows in their place! – and I wondered if my disquiet was evidence I’ve gone full Millie Tant. (Beware men who think there are some women to whom it’s OK to be sexist.)

But no. The husband is indeed a wrong ‘un. Mulligan’s monologues are interspersed with role-plays against another pure-cyan set; a living room, with details – a sippy cup, a blanket – again picked out in orange. She chides her children, Leanne and Danny, talking to the empty air about their petty squabbles. And then, halfway through the 90-minute running time, comes the punch: “I know they’re not here by the way. My children… I know they’re dead.” My mind went instantly to a routine by Louis CK. “A woman saying yes to a date with a man is literally insane,” the comedian says. “Globally and historically, we’re the number one cause of injury and mayhem to women. If you’re a guy, imagine you could only date a half-bear-half-lion.”

The narrator’s story, of a relationship going sour, is achingly familiar. Her burgeoning career, and growing confidence; the failure of his business, and his consequent loss of status. She asks for a divorce. He tells her: “There will never come a time when you have my kids and I don’t.” One night, he sweet-talks his way past the babysitter and twists a knife into little Danny’s heart, guiding it in with his thumbnail, before stabbing Leanne eight times. (Mulligan marks each wound on her body.) He tries to kill himself.

My friends with kids tell me that giving birth rewired them, leaving them reluctant to watch any drama with children in peril. To me, Mulligan seemed oddly unemotional in recounting these horrors; but perhaps a parent’s imagination would supply all the horror required.

Is it a coincidence that this play had its premiere at the Royal Court, where artistic director Vicky Featherstone has led the theatre world’s response to a reckoning with sexual harassment? Her code of conduct outlines potentially abusive behaviour, from the obvious – “physical force or threat of force, for sexual action” – to the situational: “staring, meaningful glances”. Yet Dennis Kelly’s script, which depicts one poison drop of sexism blossoming into a manifestation of the most extreme masculine rage, shows how difficult such behaviour is to police. When should the narrator have seen the danger? How can women sort the good from the bad?

In an industry convulsed by a feminist reckoning, I was left wondering if a female playwright would have dared to write lines as starkly confrontational as the narrator’s conclusion: “We didn’t create society for men. We created it to stop men.”

Girls & Boys runs until 17 March.

Helen Lewis is deputy editor of the New Statesman. She regularly appears on BBC Radio 4’s Week in Westminster and the News Quiz, and BBC1’s Sunday Politics. 

This article first appeared in the 22 February 2018 issue of the New Statesman, Sunni vs Shia