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13 Oct 2017 00:00
Politician Raila Odinga won’t take part in the elections rerun because the commission hasn’t changed. (Thomas Mukoya/Reuters)
This has been a tumultuous week — yes, another one — in Kenyan politics. Just as the country was getting used to the idea of a fresh set of presidential elections at the end of October, opposition leader Raila Odinga dropped his bombshell: neither he nor his National Super Alliance would be participating in the new vote.
His reasoning was sound.
Although Kenya’s Supreme Court had unequi-vocally condemned the electoral commission for messing up the original ballot, there has been little sign that it has made any real changes.
“We have come to the conclusion that there is no intention on the part of the [electoral commission] to undertake any changes to its operations and personnel to ensure that the ‘illegalities and irregularities’ that led to the invalidation of the 8th August 2008 do not happen again. All indications are that the election scheduled for 26 October will be worse than the previous one,” Odinga said.
Who repeats the same mistakes and expects a different outcome? Not Odinga, that’s for sure.
Meanwhile, another presidential candidate was fighting an entirely different battle. Ekuru Aukot, who garnered less than 1% in August’s disqualified results, is anxious to repeat his humiliation at the polls. He went to the courts to demand that he be allowed to participate in the new October election. It’s not a run-off vote, he argued, which would limit participation to just the two most popular candidates; it’s a whole new vote. On Wednesday, the court agreed, allowing Aukot — and, by extension, all other presidential candidates from August — back on the ballot.
So where does Kenya go from here? Electoral law is a little murky on the subject. On the one hand, Aukot’s successful petition suggests that the new election can go ahead, even without Odinga’s participation. Of course, the legitimacy of that election would immediately be called into question by Odinga’s supporters, and to press ahead regardless may risk open conflict between his supporters and those of the incumbent, President Uhuru Kenyatta.
Although most Kenyans like to downplay the risk of violence, another development this week proves just how real the risk is, and the stakes now could not be higher. Statistics released by the Kenya National Commission on Human Rights show that 37 Kenyans have died in election-related violence since the announcement of the now-annulled result in August. Most of these deaths occurred in opposition strongholds at the hands of security forces, according to the statistics, including cases of police using live fire or “bludgeoning using clubs”.
On the other hand, a different Supreme Court decision in 2013 seems to suggest that Odinga’s withdrawal invalidates the entire electoral process, which must now start again from scratch.
Confused? You’re not the only one.
“Overall, Kenya is deep into uncharted territory, testing every nook and cranny of the country’s election law,” wrote political analyst Nanjala Nyabola for Al Jazeera. “For the long game of democratic consolidation, this is good, as long as the various actors act within the confines of the law.
“But this situation also points to an overarching problem with that law: Kenya’s election law is simply too complicated. It is unwieldy — unnecessarily so — primarily to accommodate the many paranoias of the country’s leading political figures. One shouldn’t need a law degree, a high-powered printer and an afternoon off in order to understand every single political decision taken during an election cycle.”
Not that Kenya’s president appears to be all that bothered by the ambiguities. “We have no problem going back to elections. We are sure we will get more votes than the last time,” said Kenyatta in response to Odinga’s withdrawal, describing it as his “democratic right”.
If only it was as simple as that.
Read more from Simon Allison
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