On October 26th, President Uhuru Kenyatta won Kenya’s presidential re-run election with 98% of the vote. This vote came almost three months after the initial vote on August 8th in which Kenyatta won with a far slimmer majority of 54% against opposition candidate Raila Odinga. This re-run election on October 26th was due to the fact that on September 1st the Kenyan Supreme Court ordered a new election after finding numerous irregularities with the August vote.
So, what happened to Odinga? How did Kenyatta nearly double his percentage of the vote in the subsequent election?
On October 10th, just 16 days before the new vote, Odinga dropped out of the race, as he did not have faith that the election would be free and fair.
After his recusal, Odinga’s party, National Super Alliance (NASA), attempted to use a Supreme Court decision from April 16, 2013 to cancel the then-upcoming October 26th vote. In 2013, Odinga had then petitioned the Supreme Court against the Kenyan Independent Electoral and Boundaries Commission (IEBC) and President Kenyatta with regards to a March 4th 2013 election. In its judgment the Supreme Court stated that new nominations for candidates should take place if “a candidate who took part in the original election, dies or abandons the electoral quest before the scheduled date”.
However, those on the Kenyatta team argued that the 2013 Supreme Court decision did not apply under these circumstances due to the Elections Act of 2011, because Odinga did not resign within three days of the nominations. Based on the timing of the recusal, the Elections Act of 2011 would apply, and that Act states that “[when] there are only two nominated candidates and one candidate withdraws, the remaining candidate shall be declared duly elected.” Ahmednasir Abdullahi, a lawyer on Kenyatta’s team, presented this information tweeting that Kenyatta should be elected president and posted a photo of the 2011 Act. This statement blatantly implied that there was no need for an election.
The question is not is this a cause for concern? It is why is this a cause for concern?
Samuel Huntington’s classic definition of democracy is that free and fair elections are the basis to democracy. Robert Dahl includes free and fair elections as a democratic guarantee in Polyarchy. Yet the most recent election in Kenya fails to meet this democratic promise.
Prior to the re-run election, chairman Wafula Chebukati of the IEBC said, “it is difficult to guarantee free, fair and credible elections” due to the fact that many of his attempts to moderate and secure the credibility of the then-upcoming election had been unsuccessful. While Chebukati stated after the ballots were cast that he was confident in the free and fair nature of the re-run, another petition has been filed with the Supreme Court to again challenge the Kenyatta victory.
Not only was this election unfair, but also the degree of competitiveness was practically zero, thus failing Joseph Schumpeter’s definition of the democratic method in Capitalism, Socialism, and Democracy, which requires a “competitive struggle”. While around 73,000 people wrote in Odinga’s name on their ballot, he was not truly running in the election; there was no true electoral competition.
When Attorney Abdullahi and others on the Kenyatta team indicated that there was no need for a vote, they rendered the people’s vote irrelevant. Returning to Dahl’s necessary conditions in Polyarchy, “all full citizens must have unimpaired opportunities to… signify their preferences … [and] have their preferences weighed equally”. By stating that no elections need to take place, citizens are not able participate in the democratic process. And many citizens may have believed this to be true, as only 38% of voters engaged in this fundamental democratic exercise compared to 79% in August.
The Supreme Court’s decision nullifying the first election and the second petition against the re-run election by a citizen gives us hope that all is not lost for democracy in Kenya. However, even if it may be determined that two Kenyan Presidential elections in the past four months under current President Kenyatta have not been fair, he could still remain as president. This could establish a precedent where President Kenyatta feels Kenyan laws and regulations can help fortify his power despite his antidemocratic actions. The court’s decision on the re-run election will be a key determinant for the future of democracy in Kenya.
I think it’s quite clear, in this example, that an election with only one true candidate is a democratic tragedy. I doubt many would argue against this point. I think what is more interesting, in this case, is the security and freedom of Kenya’s judicial branch and courts. It seems that, in many ways, they have a lot more strength than one would imagine, particularly for such a young court (7 years old). They’ve shown a surprising amount of authority in nullifying the results of the first election. Ultimately a strong and independent court could quell any attempts at administrative seizure. Unfortunately, several days after this blog post was posted, the Supreme Court ruled in favor of the election results, dismissing both petitions aiming to overturn the vote. The supreme court was unable to respond to a late challenge, primarily because “too few judges showed up” (NY Times, Jina Moore). Additionally the supreme court’s scope of influence is purely over whether the election was constitutional and fair. NASA – the primary opposition party – released a statement “sympathiz[ing]” with the supreme court, claiming that their decision was made while under “duress.” They did however maintain that they did not believe the government to be legitimate. This is, of course, an even worse sign as tensions have risen nationally and it does not appear as if either side is willing to compromise at the moment – although it is unclear what compromise looks like in a nation where an entire party boycotts an election. Further, it does not appear likely that the courts will save Kenya from any major backsliding.