Thoughts on the Supreme Court’s Annulment of Kenyatta’s Reelection

When Raila Odinga and NASA rejected the outcome of the August 8th presidential election, they were alleging what sounded like a perfect conspiracy.

At the time, all the evidence I saw appeared to go against their claims. All the polls except one had Kenyatta in the lead; Kenyatta’s party had won handily in down ballot races, especially in crucial swing areas; and even a PVT appeared to support the IEBC’s results. Belief in these disparate data points was not necessarily a sign of naïveté, or a desire to sanitize blatant fraud.

But in NASA’s view, all this was part of a grand conspiracy. The Independent Boundaries and Election Commission (IEBC) and President Uhuru Kenyatta’s campaign had conspired to steal the election by hacking the results transmission system. In support of their claim they presented evidence of the near-consistency in the gap between Odinga and Kenyatta from the time polls closed to the time Kenyatta was announced the winner. This despite the fact that results were supposed to stream in randomly from polling stations to the national tallying centre. They alleged that Chris Msando, an IT specialist at the IEBC, was tortured and murdered ten days to the polls precisely to make this possible. They also claimed that IEBC’s results were not backed by Forms 34A, a statutory requirement under Kenya’s election laws; and that the IEBC violated the law by not following the procedures of announcing results set in law.

Kenyan election laws require presidential results to be announced at the constituency level. The IEBC is required by law to announce 290 separate results at constituency tallying centres based on Forms 34B, then tally the same to come up with the overall winner. The transmitted results in Forms 34A are supposed to match constituency results in Forms 34B. To rig the election, one has to make sure that the numbers matched on both forms — not an impossible task, but a difficult one to pull off.

Tampering with 40,000 Forms 34A and then making them match with 290 Forms 34B is not an easy task, or so one would think.

In a ruling that stunned the world, this morning the Supreme Court, in a 4-2 ruling, found enough evidence to support the claims by Raila Odinga and NASA, annulled the reelection of Uhuru Kenyatta on August 8th, and ordered a fresh presidential election within 60 days.

Two justices, Jackton Ojwang’ and Njoki Ndungu, voted against the finding. Justice Mohammed Ibrahim was unwell and missed the vote. Justices in the majority were David Maraga (Chief Justice), Philomena Mwilu (Deputy Chief Justice), Smokin Wanjala, and Isaac Lenaola.

I am yet to see the text of the ruling, but the Court decided to focus on procedural matters and not the actual tampering with results. In the justices’ view, the IEBC failed to adhere to the Constitution and Kenya’s election laws in the conduct of the presidential election. The ruling is an affirmation of procedural conformity as the ultimate test of the credibility of presidential elections in Kenya.

But courts are not entirely apolitical. From a political perspective, it is obvious that a procedural deviation was not the only factor that compelled 4/6 justices to annul the election. On explicitly political matters, courts tend to defer to politicians in Kenya. In 2013 the Supreme Court upheld the election of Kenyatta. But this time round the justices looked into the IEBC’s backroom and did not like what they saw.

The effects of this ruling will reverberate for years to come. Here are some initial thoughts.

  1. This is a powerful political vindication of Raila Odinga: His claims of having been robbed in 2007, 2013, and 2017 had cast him as a perennial sore loser (I believe he was most certainly robbed in 2007). This ruling adds credence to his claims. After today Odinga’s legacy as the father of Kenyan democracy is secured.
  2. Kenyatta is probably still a favorite in the re-run: Odinga’s turnout issues will not simply vanish with this court ruling. Furthermore, Jubilee will most certainly use its team of elected officials to drum up support for the president. The power of incumbency will be in full force (notice that the Supreme Court found no wrongdoing on the part of Kenyatta, despite clear involvement in public officials and use of public resources in his campaign). Kenyans are about to be treated to a most grueling political fight over the next 60 days. I cannot wait for the next opinion poll.
  3. This is a big win for Kenyan institutions and political development: It is fair to say that not many people predicted this outcome. While the Supreme Court was under pressure from both NASA and Jubilee, it was also faced with the fact that its decision would have long-lasting ramifications for Kenyan jurisprudence. The fact that they were able to issue a brave ruling confirms the independence of the Kenyan judiciary and the continued institutionalization of rule of law in the Jamuhuri.
  4. It is up in the air whether Kenya will indeed have elections in 60 days: Odinga will certainly demand for changes at the IEBC before he can take part in any poll. Kenyatta will want to get this over with within the time stipulated by the constitution. Kenyatta has the institutional and constitutional upper hand — he has majorities in the National Assembly and the Senate. But Odinga has the moral upper hand. He will likely summon his supporters to the streets, if need be, to force changes at IEBC — just like he did in 2016. The current IEBC leadership has already indicated that they are not going to resign, despite the stinging indictment from the Supreme Court.
  5. I am curious to see if there will be any shifts in alliances at the elite level: On the one hand, Kenyatta is the incumbent, and has the upper hand in securing support from key elites. At the same time, however, if the outcome of the re-run is sufficiently unclear, elites may have reason to believe that Kenyatta cannot win a credible election. In this case the rational thing to do would be to bandwagon with Odinga. Odinga’s elite base outside of his core support is composed of diehards. Kenyatta’s base outside of Central Kenya is more transactional. Expect to see a lot of public elite endorsements of either Kenyatta or Odinga over the next 60 days. As Kenyans say, money will be poured.
  6. This is egg in the face of election observers: Peaceful voting and counting of votes should not be the only tests of an election’s credibility. Observers must signal their willingness to call out any and all deviations from established statutory processes. This is the only way to tie the hands of relevant political actors and to enhance the signal to noise ratio of information coming from observer reports.
  7. All Kenyans of good will and friends of Kenya should work to consolidate the gains made today: Kenyan electoral laws are pretty elaborate. If enforced, and backed by technology, they can deliver a credible poll. The goal should be to tie the hands of the IEBC to ensure that the voting, the counting, and the transmission of results stick to statutory procedures. Kenyans will respect the outcome if the process is (and appears to be) transparent.

 

 

 

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Kenyan pollster Ipsos explains why they missed the mark

Today Ipsos Synovate provided their own internal analysis (see here, pdf) of the election results vis-a-vis their poll numbers right before the March 4th election.

According to the final IEBC tally (Which Mr. Odinga is challenging in court) all the eight candidates except Mr. Kenyatta performed within the margin of error of Ipsos’ last poll before the election.

Mr. Kenyatta outperformed the last poll by 5.25%, well outside the margin of error.

How did Ipsos miss this?

Their answer on page 23 basically agrees with my observation that differential turnout, especially in the candidates’ respective strongholds, made the difference.

According to the final IEBC numbers, Mr. Kenyatta’s 20 biggest vote-basket counties averaged a turnout rate of 88%, compared to Mr. Odinga’s 84%.

In related news, tomorrow Mr. Odinga will officially file the petition that seeks to nullify Mr. Kenyatta’s election as president.

CORD may seek the nullification of the whole election or narrow their challenge to just whether Mr. Kenyatta actually crossed the 50% threshold.

Crucial figures to think about as we await to see the content of the petition tomorrow are (1) 10.6m votes were cast in the 47 governor races compared to 12.3m in the presidential race, a difference of 1.7m votes; and (2) Mr. Kenyatta crossed the 50% threshold by less than 10,000 votes.

More on this next week.