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By Isaac Mwangi
East African News Agency

Arusha, 25 November 2017 (EANA) – Was the decision by the Supreme Court of Kenya to uphold the re-election of President Uhuru Kenyatta taken under duress, as claimed by the opposition National Super Alliance? Did the judges give in to a campaign of intimidation by the government? How will President Uhuru Kenyatta rule a country in which significant sections of the population see his victory as fraudulent? What will be the opposition’s next move? What will be the impact of the Kenyan election charade on Africa and the region?

While it may be the wish of many in Kenya and beyond that the incessant politicking that has characterized 2017 will now be a thing the past, that may be more of wishful thinking than reality. Even though the Supreme Court finally pronounced itself and declared President Kenyatta validly re-elected following the repeat poll held on 26 October, it will be difficult for the country to put the events of the past few months and move on as one nation.

Isaac Mwangi

The sense of desperation that pervades most parts of the country is palpable. Apart from central Kenya and some counties in the north and central parts of the former Rift Valley province, the rest of the country is in virtual mourning. While areas in Kenya’s Coast, northern counties and Ukambani have been largely peaceful throughout the electioneering period and its aftermath, they are key opposition strongholds and the sense of foreboding has never been stronger.

Of course, western Kenya and Nyanza have supported opposition leader Raila Odinga to the hilt, with some of the worst violence also being seen in those areas – apart from in the capital, Nairobi. The ruling Jubilee Party has worked hard, but unsuccessfully, to create the impression that Raila’s core support base is only to be found in “Luo Nyanza,” a term that pejoratively refers to Luo ancestral areas.

Legal analysts will be keenly waiting for the detailed judgment of the Supreme Court giving reasons for their verdict, which must be released within 21 days as per the constitution. Only then will it be known the grounds upon which the judges made their unanimous decision to throw out the petitions.

Regardless of those reasons, there is an enduring perception that the judges were victims of intimidation and could not have been expected to rule otherwise. That person also underlies a statement released by Odinga’s spokesperson Salim Lone soon after the judgment was given, in which he said that the opposition did not condemn the court but “sympathized” with it.

When the judges initially annulled the 8 August presidential election, they ordered that another poll be held within 60 days in accordance with “the dictates of the constitution and the applicable laws.” The basic question that arose, then, was whether the Independent Electoral and Boundaries Commission had fully complied with this directive – or simply held an election within the stipulated period but without sticking to the law.

To say that the judges were operating under a constrained environment would be an understatement. Part of that intimidation is in the public domain: The president went on an offensive soon after they annulled the earlier poll, calling them “wakora” (thugs). An application seeking to stop the poll could not be heard because of a lack of quorum. That lack of quorum was itself partly occasioned by an attack on the driver of Deputy Chief Justice Philomena Mwilu the day before the hearing was due.

Given this background, any ruling in favour of the incumbent was bound to raise suspicions that the judges had either been intimidated or compromised. The behaviour of IEBC Chairman Wafula Chebukati in the days prior to the poll did not help matters. He agreed with accusations by Dr Rosslyn Akombe – who resigned as an electoral commissioner and fled into exile – that there were problems at the commission, going as far as saying he could not guarantee that the poll would be credible.

The commission also seemed confused about the applicable laws, and appeared to be groping in the dark. They initially locked out all candidates apart from Kenyatta and Odinga, quoting the Supreme Court ruling of 2013; when Odinga withdrew from the contest, they did not go by the decision of that ruling to seek fresh nominations, but instead shifted goal posts and proceeded with the election.

Moreover, the fact that electoral officials who bungled the August elections remained in office sent all the wrong signals. How could these same officials be expected to oversee a credible poll?

Whatever happens, one thing is for sure: The Supreme Court decision cannot end the political problem facing Kenya. One shudders to think of what the pent-up frustrations of more than a half of the country will lead to, the consequences of which will be felt for a long, long time.


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