Kenyans have seen power of a constitution
In the coming days and weeks, they will need to defend the new legal and constitutional territory they have acquired
month ago, Kenya’s Supreme Court threw the country into a tizzy when, in a historic decision, it annulled the reelection of President Uhuru Kenyatta, citing “illegalities and irregularities” in the conduct of the August polls. The period since has been dominated by politicians exchanging recriminations. Kenyatta’s supporters have excoriated the court and, in parliament, where they have a large majority, have pushed to amend the laws that led to the annulment. Supporters of his main rival, former prime minister Raila Odinga, on the other hand, have targeted the Independent Electoral and Boundaries Commission’s (IEBC) sloppy and allegedly criminal bungling of the poll, calling countrywide protests to press for accountability and reform.
It was in this poisoned atmosphere that the IEBC announced that a fresh election would be held on October 26, with Odinga and Kenyatta being the only candidates on the ballot. Now that has been thrown into doubt following the announcement by Odinga that he and his running mate, Kalonzo Musyoka, would withdraw from the race. Ideally, this would be welcome news for Kenyatta, but these are far from ideal times. Rather than handing the presidency over to him on a platter, Odinga ironically took advantage of an obscure paragraph in the Supreme Court judgement that confirmed Kenyatta’s win in 2013, to push it a little further away.
In that petition, also filed by Odinga, the court opined that if a candidate was to drop out of the race after an annulment, then the election would need to be repeated from a scratch, with a fresh slate of candidates. This would delay the elections by at least another two months and, coupled with the ongoing street protests and pressure from both the business community (which has suffered losses due to the political uncertainty) and jittery western envoys, would force Kenyatta to negotiate a solution.
That, in fact, may be what Odinga is striving for. Kenyan politicians, after all, have become adept at the game of brinkmanship, driving the country almost to the precipice before pulling back with an agreement at the 11th hour. The truth is, despite all the talk of a constitutional crisis, this is anything but that. The legal options are very clear. The crisis that Odinga’s withdrawal presents is rather a political one. It is a crisis of legitimacy. Kenyatta knows, despite his rhetoric, that without Odinga’s participation, half the country would view his win as illegitimate, which could make a further five-year tenancy of State House pretty uncomfortable. The outlines of a political deal are also very clear. Odinga agrees to lend legitimacy to the process in return for shelving the contentious amendments to the Elections Act snaking their way through parliament as well as reforms to IEBC and the electoral system.
For the first time, Kenyans have had a taste of a world where the law can tame state power — and they appear to like it.
One opinion poll showed that more than three-quarters of likely voters were happy with the nullification, significantly including more than half of voters in Kenyatta’s ethnic stronghold. That is itself most encouraging and shows just how out of step Kenyan politicians are with the country’s mood.
In the coming days and weeks, Kenyans will need to defend the new legal and constitutional territory they have acquired. Already there is a rearguard action by the establishment seeking to roll back the gains, with Kenyatta’s advisers and supporters now openly touting the dubious benefits of benevolent dictatorship. But Kenyans have seen what the constitution makes possible, and it is unlikely that they will be easily swayed. Patrick Gathara is a strategic communications consultant, writer and award-winning political cartoonist in Kenya.