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12 October 2017

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

The supreme court ruling was unprecedented in Africa.

By Tristan McConnell

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.

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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.

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“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 appears in the 11 Oct 2017 issue of the New Statesman, How May crumbled