Legal Alert | Kenya | Kenya's Election: Alternative Scenarios - Africa Legal Network

Legal Alert | Kenya | Kenya’s Election: Alternative Scenarios


This is the fourth note in our series on the unfolding electoral process in Kenya.  The situation remains fluid and, despite calls from all quarters for the political elites to engage in meaningful dialogue, none has occurred. This note is longer than the previous ones.

So, where do we stand on whether there will be an election on 26 October? 

The ruling Jubilee party and the President insist that elections must go ahead on 26 October 2017.  Raila Odinga and the NASA coalition who succeeded in having the Presidential election annulled by the Supreme Court insist that necessary reforms to the electoral commission, the IEBC, have not been effected and that therefore a credible election cannot occur. Mr Odinga has withdrawn from the race and has written to the IEBC to this effect but has not filed the statutory form that is required to formalise his withdrawal.

Indeed, Mr Odinga has called on his supporters to boycott the election.  Recent statements have suggested that if the requested reforms are made, he may still participate but clearly the window of opportunity for this is closing fast.  The IEBC has put Mr Odinga on the ballot nonetheless, presumably on the basis that he has not filed the relevant withdrawal form, or that his withdrawal was time-barred under our electoral laws.  So, as things stand, Mr Odinga will be on the ballot but is urging his supporters to boycott the election.  The IEBC in the meantime has stated that the operational and logistical procedures to hold the election on 26 October are in place.  However, one Commissioner, Dr Roselyne Akombe, has resigned and fled the country and has stated in a written statement that ‘[w]e need the commission to be courageous and speak out, that this election as planned cannot meet the basic expectations of a credible election.’

Meanwhile, the Chairman of the IEBC, Mr Wafula Chebukati, in a statement a few days ago said: ‘I cannot guarantee credible elections at the moment however this is possible if there is a dialogue between political parties for an agreement and also if commissioners work in harmony’. He has painted a picture of an IEBC which is divided, which has retained staff who he recommended be removed from office and which is unable to deliver a credible election in the current political atmosphere.  The CEO of the Commission has, in the meantime, gone on leave but has not resigned.

Despite the fluidity and resulting uncertainty, there are certain causes for optimism.  As earlier predicted, the courts are centre stage in outlining how the electoral process will unfold, which is very positive because it means that the judicial system and the rule of law remain central to charting a way through the weeks ahead.  Resort to the courts is a reflection of the progressive nature of our constitutional and legal framework.  However, at the current time, it is also a product of the absence of meaningful dialogue between political actors. The courts have become the primary place of resort because political actors with competing agendas are unable to find common ground on key issues.

Key judicial interventions since our last alert

i) The High Court has ruled, overruling the IEBC’s decision on this issue, that a third candidate who participated in the original election, Dr Ekuru Aukot, should also be on the ballot for the next election.The IEBC has decided to put all original candidates (bar one, on technical grounds) back on the ballot. Although this may have gone unnoticed by many, there were in fact nine original presidential candidates. However, the totality of the votes of the candidates other than President Kenyatta and Mr Odinga was about a quarter of the rejected votes and less than one percent of the total vote.

ii) The Supreme Court has confirmed that the IEBC when verifying and tallying votes must point out discrepancies on the reporting forms (Forms 34A and 34B) but cannot correct them, which is a matter only for the Supreme Court.

iii) The High Court overturned the Minister of Internal Security’s ban on protests, upholding the constitutional right to demonstrate and picket by members of the opposition.

iv) The High Court has ruled that the Government of Kenya cannot trumpet its accomplishments through the Government Portal and other media since to do so is an election offence and a violation of the Constitution.

The Election Laws (Amendment) Bill, 2017

Outside the courts, in a very significant development, the Jubilee party sponsored a bill, which has been passed by both Houses of Parliament, and which awaits Presidential Assent, called The Election Laws (Amendment) Bill, 2017 (the “Bill”).  The President is previously on record stating that he would not hesitate to assent to the Bill, but he has not yet done so. The delay in assenting to the Bill is probably part of the on-going electoral stratagem. The President will likely assent to it immediately before the election in order to diminish the chances that a court may interfere with its coming into force before the election.   The Bill has the effect of significantly amending various election related laws. The Bill contains various clauses that are considered controversial and members of the NASA opposition alliance did not participate in the debate of the Bill.

The key changes proposed by the Bill

1) It states that where there is a discrepancy between manually transmitted results and electronically transmitted results, manually transmitted results shall prevail.

2) It provides that a failure to transmit or publish election results in an electronic format shall not invalidate the result as declared by the presiding offices at polling stations and returning officers at the constituency tallying centre.

3) It removes the requirement for the IEBC to put in place a complementary systems for the transmission of results.

4) It clarifies that any information transmitted via live stream shall be for public information only and shall not be a basis for a declaration of results by the IEBC.

5) It restricts the IEBC from announcing provisional results and requires the IEBC to have received all the results before declaring the final result.

6) It amends Section 83 of the Elections Act with the apparent intention of requiring that when a court is deciding whether to annul an election, it not only must establish non-compliance with the law and the Constitution but also that such non-compliance affected the outcome. Interpretation of this provision by the majority in the Supreme Court was controversial and, notwithstanding this amendment, based on the Supreme Court’s analysis, it is likely that this provision will remain controversial.

7) It provides that in the absence of the chairperson the vice-chair person shall act as chairperson, and in the absence of both, any other Commissioner can act as chairperson. This change was apparently designed to provide redundancy for a situation where both the Chairperson and the vice-chairperson were to resign.

8) It changes the quorum for the IEBC Commissioners from 5 to 3 and allows them to act by majority such that, in theory, a decision of two Commissioners could bind the Commission.

9) It provides for who may stand in a fresh election following an annulment by the Supreme Court, depending on who filed a petition and dispenses with any possible argument by Mr Odinga based on the 2013 Supreme Court judgment that his withdrawal triggers the need for a fresh election with fresh nominations. We have previously argued that this argument was not supported by the Constitution in any event.

The legality and propriety of the Bill if it becomes law

In Kenya all laws passed by the legislature have a presumption of legality. This means that the Bill will be binding upon its publication in the Kenya Gazette.  There is no question that Parliament has the power to propose the Bill and the President has the power to assent to it, notwithstanding that he has not been sworn-in.

However, whether the principle of a sitting government changing electoral laws during the course of an election process is good policy is an entirely different matter.

It is akin to changing the rules of a race during the course of the race and before the race is completed: possible if the rules allow it, but unlikely to engender confidence from the competitors or spectators.

One can fully appreciate the desire of the Jubilee parliamentarians to try and cut back what they perceive as the Supreme Court usurping President Kenyatta’s victory by changing the laws in a manner which make a subsequent challenge more difficult. However, the difficulty for Kenyans is that a number of the changes also make the electoral system less robust.  Certain of the provisions may face legal difficulties in the event they are found to be in breach of the Constitution.

More importantly, however, the passage of the Bill during the exigencies of this political impasse ignore the story of electoral reform in Kenya. This process has a long, complicated and bloody history, most particularly arising from the process of reform following the post-election violence of 2007/2008 arising from the disputed election between President Kibaki and Mr Odinga.  The Kriegler Commission was set up to investigate the causes of the violence and to make recommendations in relation to the constitutional and legal framework and in particular in relation to the electoral process, in order to prevent a repeat of the violence and breakdown of law and order that occurred in 2007/2008.  It is telling that amongst its key findings and recommendations were:

‘The process of delivering results, to KICC [the national tallying centre] by returning officers on phone immediately after constituency tallying and then following results thereafter when the provisional tallies had been announced was the main source of confusion at the national tallying centre. Numerous complaints in relation to counting and tallying were made by political parties, individual voters, civil society organizations (CSOs), domestic and international observers, the media and even ECK commissioners and staff.’

It was this debacle that led the Kriegler Commission to recommend that the electoral body, ‘[should] start [developing] an integrated and secure tallying and data transmission system, which will allow computerised data entry and tallying at constituencies, secure simultaneous transmission (of individual polling station level data too) to the national tallying centre, and the integration of this results-handling system in a progressive election result announcement system.’

It is precisely this recommendation which the Bill will in effect overturn.  The proposal to rely on manual systems and to not require complementary systems for electronic transmission is a step backwards.  Rather than requiring the IEBC to improve deficiencies in its IT systems, the Bill seeks to reduce the importance of IT to the election process.

From a constitutional perspective, it is arguable whether the pre-eminence of manual results over electronic ones, the overlooking of failures in electronic transmission and the removal of the requirement to have complementary electronic systems meet the constitutional thresholds for transparency, accountability, simplicity, security, accuracy, efficiency and, especially, verifiability of the electoral process under Articles 10, 38, 81, 86 and 88 of the Constitution.  The Supreme Court in their recent majority decision declared that the ‘…IEBC failed to observe the mandatory provisions of Article 86 of the Constitution requiring it to conduct the elections in a simple, accurate, verifiable, secure, accountable and transparent manner. Where is transparency or verifiability when IEBC, contrary to Articles 35 and 47 of the Constitution, worse still, in contumacious disobedience of this Court’s Order, refuses to open its servers and logs for inspection?’

Also on the use of technology in their recent majority decision the Supreme Court held:

‘These changes, in our view, were meant to re-align several pieces of election-related legislation, with the principles of the Constitution and the electoral jurisprudence that had been developed by the Courts. The cumulative effect of these changes was the establishment of what is now referred to as the Kenya Integrated Election Management System (KIEMS). Henceforth, technology would be deployed to the process of voter registration, voter identification and the transmission of results to the Constituency and National Tallying Centres.’

What is the anticipated way forward?

It is true that Article 140(3) of our Constitution requires a fresh presidential election to be held within 60 days of the decision to annul the election by the Supreme Court.  A so called constitutional cliff could arise if no election is held by 1 November.  Kenyans would have hoped that despite their differences in opinion about the Supreme Court verdict, respect for its verdict and the concomitant indictment of the IEBC would have seen a series of agreed reforms to the electoral process to allow for free, fair and credible elections, supported by all parties.  Instead, the opposition laid down a series of demands, termed ‘irreducible minimums’, many of which were likely incapable of being complied with, within the time permitted.  The President’s Jubilee party on the other hand has largely refused to engage in any discussion on reforms.  The IEBC in the meantime has been turned into a political football, its credibility in tatters.

So, days from the election, with the NASA Opposition currently boycotting the election, what can we expect?

An election will likely take place on 26 October 2017.  Mr Odinga has said that he will tell his supporters what to do on the day before the election. Assuming he advises them that the boycott continues, it is imperative that Mr Odinga calls for a peaceful boycott.  A peaceful boycott implies that those Kenyans who wish to vote are free to do so without intimidation or threats of violence, whilst those who wish to boycott the election exercise their right to do so.  Recent statements by Mr Odinga and Mr Kenyatta have at least been reconciliatory in this regard.  Any attempt to disrupt what is a lawful election will not only be morally repugnant but also constitute an election offence under Kenyan law.

Of course, if Mr Odinga boycotts the election, it is likely a foregone conclusion that President Kenyatta will be sworn in for a second term.  No doubt there will be a further challenge to the Supreme Court by Mr Odinga or by others.

The defining feature of successive elections in Kenya has been increased voter participation.  Despite the many failings of our politics class, this increased participation reflects the unrelenting optimism of the people of Kenya and their belief that politics can be a force of good.  However, if the boycott is effective, somewhere close to half the electorate, mainly from very distinct parts of Kenya will have refused to participate.  President Kenyatta will be our lawful president but he will have a lot of work to do in order to be recognised as legitimate in the eyes of many.  And in democratic politics legitimacy is everything.

So, Kenya under President Kenyatta’s leadership (assuming his re-election is not nullified) will have to try and put itself together again.  We have, in a fashion, done so in the past.  It will not be easy.  Our leaders will need to rise to the occasion, reach out beyond tribe and party politics and create a new politics which are inclusive and which create national appeal.

An alternative scenario

It may have been possible for the IEBC to petition the Supreme Court to the effect that it is unable to comply with the law and the Supreme Court’s decision within the time stipulated within Article 140(3).   In doing so, it could have pointed out its overriding objectives under Articles 10 and 73 of the Constitution to hold a free, fair, credible and transparent election.  It could also have pointed out that there would be no ‘gap’ since President Kenyatta would continue to serve as President under Article 142 of the Constitution.  If such an application were to be supported by the Jubilee party and NASA alliance under some sort of National Accord, the Supreme Court may have been minded to overlook the 60 day timeline under Article 140(3). However, with so little time left before 26 October, this alternative scenario is probably simply academic. A final scenario is that Section 55B of our Elections Act allows for an election in a constituency to be postponed because the Commission believes that a breach of the peace is likely to occur or because of natural disaster or other emergencies. It may be possible for the Commission to argue, on this basis, that more time is needed for the proper holding of the Presidential election in all constituencies.

Should you have any questions on this legal alert, please do not hesitate to contact Karim S. Anjarwalla.

Karim S. Anjarwalla
Managing Partner

The content of this alert is intended to be of general use only and should not be relied upon without seeking specific legal advice on any matter.