Arrow Left Arrow Right Camera icon set icon set Ellipsis icon set Facebook Favorite Globe Hamburger List Mail Map Marker Map Microphone Minus PDF Play Print RSS Search Share Trash Twitter Video Camera Youtube
Kenya: A Historic Decision, A Tough Road Ahead
Kenya: A Historic Decision, A Tough Road Ahead
Report 197 / Africa

Kenya’s 2013 Elections

Preparations for elections in Kenya turn into high gear today as the parties in the three major coalitions nominate their candidates.

Executive Summary

Kenya’s elections this year should turn the page on the bloodshed of five years ago, but the risk of political violence is still unacceptably high. A new constitution, fresh election commission and reformed judiciary should help. But the vote, now set for 4 March 2013, will still be a high-stakes competition for power, both nationally and in 47 new counties. Forthcoming trials before the International Criminal Court (ICC) of four Kenyans for their alleged role in the 2007-2008 post-election violence look set to shape the campaign. The potential for local violence is especially high. Politicians must stop ignoring rules, exploiting grievances and stoking divisions through ethnic campaigning. The country’s institutions face fierce pressure but must take bold action to curb them. Business and religious leaders and civil society should demand a free and fair vote. So too should regional and wider international partners, who must also make clear that those who jeopardise the stability of the country and region by using or inciting violence will be held to account. 

Many reforms were initiated to address the flawed 2007 polls and subsequent violence. A new constitution, passed in a peaceful referendum in August 2010, aims to fortify democracy and temper zero-sum competition for the presidency by checking executive power. New voting rules require the president to win more than half the votes and enjoy wider geographic support. Power is being devolved to 47 counties, each of which will elect a governor, senator and local assembly. Despite recent mishaps, the new Independent Electoral and Boundaries Commission (IEBC) still enjoys public trust. Judicial reform, including the appointment of a respected new chief justice, also augurs well for a more robust response to electoral fraud and disputes. 

The new institutions, however, have their work cut out. The ICC proceedings are influencing political alliances and the campaign. The four individuals facing trial deny the charges and maintain their innocence. While the cases aim to erode impunity long enjoyed by political elites and may deter bloodshed, they raise the stakes enormously. The two most powerful of the accused, Uhuru Kenyatta and William Ruto, look set to contest the elections on a single ticket (Kenyatta for president, Ruto for deputy president). Both have politicised the ICC cases, deepening ethnic polarisation, and have accused Prime Minister Raila Odinga, their strongest opponent, of conspiring with foreigners against them. 

The Kenyatta-Ruto alliance would be a strong ticket. Aware that Kenyans want an end to impunity, both have pledged to comply with the ICC, even if they win. Yet, regardless of the outcome of their cases, a president facing lengthy trial before the ICC could potentially have extremely damaging implications for reform and foreign relations, which Kenyatta’s backers should ponder carefully. For the moment, their eligibility to run for office remains in doubt; a case challenging their compliance with new constitutional requirements for public officials’ integrity is with a high court and may find its way by appeal to the Supreme Court. Were the courts to find Kenyatta and Ruto ineligible after the closing date for submitting nomination papers on 30 January, their supporters would be unable to choose alternative candidates, which might lead to strong protests and even spark conflict. Dealing as it does with a highly charged political issue, whichever way it goes, the final decision is likely to be contentious. If possible, the date of any decision should be announced in advance so the security agencies and others can prepare accordingly. 

Other signs are also troubling. Political parties and politicians flout new rules unchecked. The IEBC’s bungled procurement of voter registration kits reduced the confidence it previously enjoyed and suggests it may struggle to resist enormous pressure as the vote approaches. The late start to registration has cut all fat from the electoral timeline, and any flaws will heighten tension. The IEBC must work transparently with parties and other stakeholders to clarify and regularly review the timeline, so as to avoid any further – and highly-charged – delays.

Voter education will be crucial. It is the first general election under the 2010 constitution, with new rules that are considerably more complex than previous polls (each voter will cast six ballots). Limiting confusion and misunderstandings could help reduce disputes and election-related conflict. It is also vital that the IEBC provide sufficient access and information to citizen observers and other civil society groups. They must be able to plan their deployment properly and enjoy full access to every part of the election process, especially the tallying of results. Such groups can also be useful allies in bolstering commissioners’ ability to resist political interference.

Insecurity too poses a huge challenge. Despite the reforms, many structural conflict drivers – continuing reliance on ethnicity, competition for land and resources, resettlement of internally displaced people (IDPs), and poverty and youth unemployment – underlying the 2007-2008 violence remain unresolved and may be cynically used by politicians to whip up support. Many of those who fled the turmoil remain displaced. Land disputes feed local tension. Youth unemployment is still very high and, together with poverty and inequality, means a steady flow of recruits for criminal groups and militias that can be mobilised to intimidate opponents and their supporters or protest results, as they have in the past. Attacks blamed on the extremist Al-Shabaab movement and clashes over land can cloak political violence. Meanwhile, police reform has lagged and the security forces look ill-prepared to secure the polls. An experienced inspector general of police, David Kimaiyo, has been appointed, but the delay in his selection means little time remains for significant security reform. Multi-agency security planning, which has also lagged, must be completed and implemented. 

Ethnic campaigning and horse-trading as alliances formed – by Kenyatta and Ruto but also other leading politicians – have deepened divides. How the supporters of either of the two main tickets, those of Deputy Prime Minister Kenyatta and former cabinet minister Ruto running and of Prime Minister Odinga and Vice President Kalonzo Musyoka respectively, would respond to losing a close vote it perceives as flawed, or even to early signs it is falling behind, is unclear. International partners, including regional neighbours whose economies rely on a peaceful transition, should monitor any signs of interference or violence and weigh in quickly to deter it. Devolution, for all its benefits, introduces new conflict dynamics, as competition between groups for power and resources controlled at county level becomes fiercer. 

All these challenges are surmountable, especially given the remarkable determination of most to avoid a repeat of 2007-2008. But they require concerted action by Kenya’s institutions and their allies, and – most important – clear signals to leaders who are seen to be prioritising the pursuit of power. The people deserve better. To put the horror of five years ago behind them, they deserve the chance to vote without fear and elect leaders committed to reform and ready to serve society as a whole rather than the narrow interests of its elites.

Nairobi/Brussels, 17 January 2013

Judges sit in court as President Uhuru Kenyatta's election win was declared invalid in Nairobi, Kenya, on 1 September 2017 REUTERS/Baz Ratner
Statement / Africa

Kenya: A Historic Decision, A Tough Road Ahead

Kenya’s Supreme Court decision to annul the 8 August presidential election is bold and historic, but the path ahead will be fraught. A successful rerun within 60 days will need compromise on a better electoral commission, more accountable policing and more effective management of the high-stakes vote.

The 1 September decision by Kenya’s Supreme Court to annul the results of the 8 August presidential election and order a fresh vote was at once unexpected, historic, bold and – by African and almost any other standard – unprecedented. The judgment compels many – Kenya’s political leaders, of course, but also members of the international community – to engage in some introspection. Most urgently, it requires both local and international actors to take urgent steps to ensure that the integrity of the forthcoming election is protected and that both the period leading up to the vote and its aftermath are peaceful.

By a 4-2 majority, the court found that the electoral commission had failed to comply with the “dictates of the constitution and the applicable principles” in conducting the poll, rendering the elections “invalid, null and void”. The incumbent, President Uhuru Kenyatta, whom the Independent Electoral and Boundaries Commission had declared the winner, will now have to take part in a new election to be held within 60 days. In the next three weeks, Supreme Court judges will issue a full judgment outlining the reasons behind their decision.

[President Kenyatta] blamed the judges for attempting to “overturn the will of the people”, and subsequently asserted that the country had a problem with the judiciary that ought to be “fixed”.

Unsurprisingly, strongholds of opposition leader Raila Odinga in Nairobi, Western Kenya and in the port city of Mombasa celebrated the decision. Odinga himself welcomed the judgment, calling it “a historic day for the people of Kenya, and by extension the people of Africa”. Initially, President Kenyatta struck a conciliatory tone, coupling disagreement with the decision alongside a commitment to respect it. That shifted over time, however. At a rally following the court’s decision, he blamed the judges for attempting to “overturn the will of the people”, and subsequently asserted that the country had a problem with the judiciary that ought to be “fixed”.

Kenyatta’s more ominous tone is but one of the many challenges ahead as Kenyans embark on the perilous task of delivering a relatively smooth poll within two months.

Improving election supervision

At the centre of the looming battle, and by far the trickiest and most divisive issue, is the fate of the electoral body, the Independent Electoral and Boundaries Commission, (IEBC), which was criticised by the judges for committing “irregularities and illegalities” in running the 8 August election. Odinga’s National Super Alliance (NASA) coalition is demanding wholesale changes in the commission’s secretariat and the resignation of six officials, including Ezra Chiloba, the Commission’s chief executive officer. Conversely, Kenyatta’s camp has signalled it would resist any such change. On 2 September, Deputy President William Ruto ruled out altering the IEBC’s composition, accusing the opposition of not being ready to take part in the rerun.

Reaching an acceptable resolution will require compromise on both sides, not belligerent rhetoric.

That there were problems with the IEBC systems seems beyond dispute, as Crisis Group warned last March and as the Supreme Court found. Some change therefore will be needed if confidence in the electoral process is to be restored. But reaching an acceptable resolution will require compromise on both sides, not belligerent rhetoric. The opposition and government should immediately begin talks on this matter and seek a pragmatic solution that can be implemented in the tight statutory timelines. Odinga has offered a possible way forward: to get members of parliament to work in a bipartisan manner and agree on the appointment of officials who will conduct the rerun. At a minimum, this is a positive signal, but whatever changes are made should include a rapid assessment of what went wrong during the 8 August election as well as implementation of safeguards to avoid a repeat of those failures. In the absence of an agreement, religious leaders and diplomats with leverage over key actors should step in to broker an acceptable compromise, as they did in October 2016 when the opposition led protests to oust commissioners that presided over the 2013 election.

Ultimately, going into the new election, the IEBC should heed Chief Justice David Maraga’s clear admonition: elections are a process, not a single event, and should strictly adhere to the constitution and statutory processes at every stage. In particular, they should ensure that the expensive electronic system procured to improve transparency in transmission of results is deployed effectively and results posted without undue delay. Unexplained delays in releasing returns from tallying centres underpinned early opposition complaints over the 2017 vote.

Ensuring effective, non-partisan policing

If the electoral commission fared poorly in the elections, police forces did no better.  Security forces brutally cracked down on protesters in the aftermath of the voting, with at least 24 Kenyans killed by the police, including a six-month old baby. As an immediate step, the Independent Policing and Oversight Authority (IPOA), the state agency charged with investigating police excesses, should expeditiously probe the killing of innocent civilians and bring charges against suspects. This, combined with a clear statement by the authorities that such behaviour is unlawful and perpetrators will be held to account, should help deter similar behaviour in the run-up to, and aftermath of, the new elections. 

In the longer term, far deeper reforms of the security forces will be needed, involving in particular greater investment into training for conflict-sensitive policing.

The role of observers

Observer missions were not spared by Kenyans unhappy with their elections. In reality, observers for the most part made their preliminary statements with caveats, underscoring that they were but initial assessments of voting and counting. Few of those statements could be read as ringing endorsements of the polls, while most highlighted significant flaws. Some observers subsequently took the unusual step of criticising the lack of transparency and speed in tallying of the results. None dismissed Odinga’s complaints, instead calling on him to pursue them through the courts not the streets, which, to his credit, he did, with the stunning results we now know.

That only goes so far, however. The impression created, by the statements themselves and by observers’ other pronouncements, was that results were accurate, and it was time to move on.

As the Supreme Court explains its reasoning, and more facts come in, there are lessons to be learned by all ahead of the next round. The timing and tone of preliminary statements after a complex and tense election always poses dilemmas for observers.  Early statements risk precipitous and flawed assessments, with consequences for observers’ credibility. But they can also calm jittery nerves. In 2007, the European Union delayed its statement by a few days, but was criticised at the time for reinforcing the sense of uncertainty that played into the post-election violence. As in all such circumstances, parties that were involved – such as observer missions and independent organisations, Crisis Group included – stand to gain by engaging in a measure of introspection and lessons learned. 

There is, particularly among opposition ranks, understandable anger [...] at the international observers’ performance.

There is, particularly among opposition ranks, understandable anger, justified or not, at the international observers’ performance. Yet all Kenyan leaders should hold their fire.  Observers, like the media and outside organisations, can play a central role in deterring abuse and in improving the atmosphere in heavily polarised environments marked by low trust in public institutions. Their voice in what is likely to be a fraught campaign and poll over the coming weeks will be critical. In this context, observer missions will need to redouble efforts to define precisely and with greater clarity their conclusions in all public statements.

The Supreme Court’s decision represents a victory for the independence of Kenya’s judiciary and the rule of law. The onus now shifts to the country’s politicians, and to those in the international community with influence over them, to act responsibly so that Kenyans can witness a smooth, peaceful and credible vote by the end of October.