Kenya’s supreme court rules presidential election invalid

Kenya’s supreme court has nullified the result of last month’s presidential election, in an unprecedented ruling that deals a severe political blow to incumbent president Uhuru Kenyatta.

It means a new vote has to be held within 60 days. It will pit the election winner, Mr Kenyatta, against Raila Odinga, a veteran opposition leader, who challenged the result in the court, claiming widespread rigging.

"The declaration [of Kenyatta's win] is invalid, null and void," said Judge David Maraga, announcing the verdict of four out of the six judges.

Reading the ruling in a packed courtroom on Friday, he said the electoral commission had “failed, neglected or refused to conduct the presidential election in a manner consistent with the dictates of the constitution”.

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The ruling, the first of its kind in Africa, cannot be appealed.

Mr Kenyatta said he disagreed with the judgment but would respect it. “I disagree with it because millions of Kenyans queued and made their choice and six people decided that they will go against the will of the people,” he said.

He added that he was “ready to go back to the people with the same agenda, no change, that we delivered”.

The electoral commission had declared Mr Kenyatta the victor of the August 8th presidential election, saying he won 54 per cent of the vote to Mr Odinga’s 45 per cent – a difference of 1.4 million votes.

But Mr Odinga, who was making his fourth bid for the presidency, alleged that many results forms from polling stations were forged and that the electoral commission's computer systems were tampered with. He also claimed that his supporters in opposition strongholds were intimidated by senior government officials.

"This is a triumph for the people of Kenya, " Mr Odinga said after the court ruling. He said the electoral commission had committed "treasonable acts" and that the opposition would be "unstoppable" in the re-run of the vote. He said the commission officers responsible for the irregularities "belong in the jail".

“We are going to ask for the prosecution of all the electoral officers who have caused this monstrous crime against the people of Kenya,” Mr Odinga said.

Tensions

Opposition supporters poured on to the streets of opposition strongholds to celebrate the decision.

The electoral commission had faced intense criticism, particularly from the opposition, over its preparations for the vote and its conduct of the count. In particular, the security and reliability of the commission’s IT systems were regularly questioned.

Tensions escalated after Chris Msando, the commission's IT chief, was found murdered, his body showing signs of torture, just days before the vote. Wafula Chebukati, the election commission chair, said he would not resign in the wake of the court ruling, but added that he would makes changes to "personnel and process" before the re-run.

Duncan Otieno, a political and legal analyst, said the ruling was “huge” for Kenya and Africa. “In Kenya it has restored the integrity and credibility of the judiciary and taken our electoral democracy a notch higher,” he said. “It restores hope in the sections of the people who had lost hope in the electoral process.”

Kenya has a history of disputed and often violent elections.

Mr Odinga (72), the leader of the National Super Alliance, an opposition coalition, had previously appealed to the supreme court after losing a disputed poll in 2013 when Mr Kenyatta, the son of Kenya’s first president, took office. But that was rejected.

Mr Odinga became prime minister in a power-sharing government in 2008 after about 1,200 people were killed in politically motivated violence and 600,000 others forced to flee their homes after a flawed election.

In a sign of concerns that the political uncertainty will damage the economy, trading on the Nairobi stock exchange was halted temporarily after shares of blue-chip companies fell 10 per cent after the court ruling.

“The economy was already on the ropes and this is a punch in the solar plexus,” said Aly-Khan Satchu, an investment analyst. “We’re going to have another 60 days of God knows what.”

Emma Gordon, an analyst with consultancy Verisk Maplecroft, said that while the decision "will present a short-term shock, over the long-run, the decision may help build trust in the country's institutions".

“The population’s lack of faith in the system is one of the reasons why politics often descends into violence,” she said. “While this decision cements the view that the IEBC was biased, it demonstrates that independent checks and balances do exist.”

Narrow interpretation

The opposition’s appeal to the supreme court was based on analysis of the results forms from the almost 41,000 polling stations and 290 parliamentary constituencies, which aggregated polling station results. It said the results forms “ought to have been accurate, legitimate and verifiable across the country [but] are demonstrably contradictory, defective and bear fatal irregularities affecting 14,078 polling stations”.

Stephen Mwenesi, who represented the Law Society of Kenya as a neutral party in the appeal, said it appeared that the court reached its decision on a relatively narrow interpretation of the constitution and election laws.

“The constitution says that every vote has to be properly counted and accounted for,” he said. “The judges clearly felt that this had not been met during the tallying process when their website was giving different figures from the results forms.”

Kalonzo Musyoka, who was Mr Odinga’s running mate, said changes would be needed within the electoral commission ahead of the new vote. “We don’t have faith that they’re capable of conducting a free and fair election,” he said.

Copyright The Financial Times Limited 2017