Opening the Pandora’s Box

How the nullification of the presidential elections in Kenya has put that country on a slippery slope

The Kenya Supreme Court annulled the election of President Uhuru Kenyatta and ordered a re-run because the balloting and transmission of results did not conform to the laws and constitution. There are many legitimate and convincing reasons to support the court decision – the moral repugnance of the irregularities, the need to hold leaders accountable, and the valuing of constitutionalism and democracy. Yet I want to argue that the justices took a very risky decision for Kenya.

In Kenya, and other poor countries with limited opportunities outside the state, the stakes in elections are always very high. Power can mean the difference between prosperity and destitution. People are willing to take the highest risks to gain and retain power. Since the re-introduction of multiparty politics in 1992, every presidential election has pushed Kenya to the brink. In 2007/08 it almost led to civil war and the dismemberment of the state.

Such a risk once every five years is affordable. Yet the Supreme Court ordered an election within three months of the last one. It is possible it will go without a hitch. But it is also very likely to heighten tensions and stimulate violence. If the court had considered this, it should have erred on the side of caution.

Now we must ask: what injury was the Supreme Court trying to cure? Many say it aimed to discourage electoral malpractices and irregularities. But will ordering another election force actors to avoid indulging in similar irregularities? And if the irregularities are repeated and the loser returns to the same court, will they nullify the election again? If yes, what is the end game? Third, can the political institutions of Kenya withstand the stress resulting from such nullifications and repeated presidential elections?

The Supreme Court decision is even more baffling considering the margin of victory was big (54% against 44%). International election observers from the African Union, the European Union and the Carter Center had said the election was free and fair and had asked the loser to concede. ELOG, a local NGO, did an alternative tallying of results and their numbers are almost similar to the official ones. Hence, in annulling the election on the basis of technicalities in transmitting results, the Supreme Court disregarded the freely expressed will of the Kenyan people.

Many supporters of the court say it did the right thing because the decision advances the cause of democracy. Yet it undermines democratic development. Democracy is a process, not an event; and the democratic journey is traversed at a creep, not a gallop. No court decision can shoot democracy into place. But courts can aid the democratisation process by avoiding scenarios that increase tensions. I am reliably informed that opposition leader, Raila Odinga, went to court to divert his supporters from protesting. He hoped that even when he loses in court, he would have demonstrated to them that he at least tried to defend their cause. If this is true, then Raila is a politician of great insight and foresight.

Prodemocracy evangelists in Africa suffer from a shallow but intense religiosity in their militant desire to see our nations realise the democratic maturity of Sweden or Norway by one stroke of a pen. They see every African country as a tabula rasa on which democracy can be established overnight and it works like it does in Sweden.

Yet democracy cannot be copied and pasted from one society onto another. Rather it grows under specific historic circumstances. To demand or expect democracy in Africa to immediately work as it does in Sweden is to force long-term trends to a pre-mature conclusion. It also means disregarding the specificity of our context; especially the role of factors such as habit, sentiment, and custom in shaping political outcomes.

Institutions are patterned human behavior that exist and function through people of a society. Nations like Kenya are composites of different ethnic identities with strong suspicions of each other. Accusations of rigging are not only because there are irregularities, which is often the case. They also reflect these deeply felt suspicions by different groups that compete for power. Mistrust leads every community to stuff ballot boxes for its candidate in its ethnic stronghold. Each group does not trust its opponent to do otherwise – what in economics is called “the tragedy of the commons”.

Yet the proper functioning of democracy requires some degree of trust among the competing groups. With high mistrust, it is difficult to avoid rigging. Therefore, a re-run of the election cannot cure the irregularities in the process. In the re-run, Uhuru Kenyatta’s side will feel the court has tried to rob them of victory. So they will enter the reelection process to defeat the court, not Raila, by increasing their margin of victory. Regardless of what Uhuru himself may desire, his allies both within and outside the state are going to do everything legal, non-legal, and illegal to win by an even larger margin. Yet this will leave a lot of evidence of malpractice and thereby lay the ground for another petition.

On the other hand, the supporters of Raila are now energised and will not accept anything except victory. They will not trust the Uhuru side to play fair, or the electoral commission to be independent. They have already asked it to be disbanded yet there are only two months to the next election. And they will not be immune from the temptation to rig in their own ethnic strongholds.

Therefore, the most likely outcome of a re-run is not improved quality of the election. Instead it will increase the incentive on both sides to rig. Whoever loses will reject the results and go to court challenging the results. The court has put itself in a very difficult position where the loser does not accept the results and goes to it with evidence of malpractice. The court will have to either keep annulling the election or turn its back on its own precedent.

The court lacked foresight to appreciate that the matter before them was a political one that no legal arguments can solve. Elections are inherently imperfect, and a perfect electoral process is impossible to achieve. The solution for Kenya is to content itself with an imperfect electoral process but which is capable of infinite improvement. The court and its defenders failed to see that democracy is a long game and the patient are the most successful at it.  

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