More decisions ahead for Kenya

The Kenyan elections have somehow contrived to produce the precise opposite of the result elections are supposed to produce. Elections are intended to settle, at least for a time, political contests and create the conditions for legitimate government. This Kenyan election seems to have set the government and the opposition on an ever more conflictual path, even though it seemed impossible to intensify their already virulent opposition to each other.

Even worse, it has resulted in a less legitimate government, assuming the result stands after being tested in the court, which is itself a big ask.

How Kenya got to this point is bewildering. It was not meant to be this way. As it stands, in the rerun presidential elections President Uhuru Kenyatta won 98% of the vote on a 39% turnout, which will go down as the lowest turnout in Kenya’s history. Turnout in the annulled presidential election of August 8 was 79%. The stayaway was the result of opposition candidate Raila Odinga withdrawing and calling for a third and cleaner election. It’s a mess.

One way out would be for the two sides to try negotiating a solution, which is a call that business, diplomatic and religious organisations have been proposing with vigour. But the election row has been so passionate, they seem unlikely to talk, never mind negotiate. The positions taken by both sides are intensely hardline; both have accused the other of sabotage no less.

In retrospect, should the Supreme Court of Kenya have taken such a dramatic decision as to cancel the elections and demand a rerun within 60 days? It’s hard to say; it was a brave decision. If the courts are faced with an election in which there are legitimate disputes, their hands are effectively tied. By setting out a specific time period, the court was obviously trying to ensure that the elections would yield a result and not be forever postponed. But perhaps in retrospect much of the damage could have been avoided if the courts had yielded to the sensible call for a postponement.

The organisation that is most at fault is probably the Independent Electoral and Boundaries Commission, which was obviously desperate to redeem itself after presiding over an election that was nullified by the court. It decided to press ahead with the election without entirely satisfying all sides that its processes were sufficiently resilient. According to the Kenyan press, the commission refused to audit its systems, which suggests it might have something to hide, and the opposition parties, not unfairly, drew the conclusion that the body was predetermining the result. Now, it is once again in a cleft stick; either it tries to endorse a manifestly unfair result, or it has to do it all over again.

The problem is that these presidential elections resemble a family feud rather than a political contest. Kenyatta’s father, Jomo Kenyatta, and Odinga’s father, Jaramogi Oginga Odinga, were political opponents in the 1960s.

The pressure for a negotiated solution is much less than in 2008, when the country seemed on the verge of an ethnic meltdown. Most observers seem to have given up on the idea that any agreement between the parties is even remotely possible. But they should at least try to pressure politicians on both sides to consider the wider interests of the country — not easy, but it certainly won’t happen if no effort is made at all.

Kenyan courts should be allowed to consider the situation afresh. The parties themselves seem incapable of coming to an agreed solution, so there is no alternative but for the courts to once again step in.

In some ways, Kenya is forging a path many other African governments might face in the future. Instead of one-party dominant systems, a host of African countries is moving towards more contested elections. What happens in Kenya now will doubtless have consequences elsewhere, which makes it all the more important that the country sets a high-quality precedent.

THE COURT WAS OBVIOUSLY TRYING TO ENSURE THAT THE ELECTIONS WOULD YIELD A RESULT