Any outcome is possible in petition, including annulment

Two numbers remain a source of discomfort for President Uhuru Kenyatta as he faces a fresh petition that seeks to annul his re-election as President in the repeat election held on October 26.

The first number is the 38 per cent voter turnout in the repeat election, a drop from the 79 per cent in the original election held on August 8.

The second is the 98 per cent share of votes that Uhuru won in the fresh election.

CHARADE

In the region, the re-election is similar to Sudan’s 2015 election, in which President Omar el-Bashir, already in power for 26 years, was seeking re-election for a further five years.

Just like in Kenya, the main opposition boycotted the election, terming it a charade, and instead engaged in a campaign against the holding of the election.

Bashir’s National Congress Party even gave up fielding candidates for some seats, to allow the opposition a chance to win something.

After extending polling by a day, to improve turnout, and against an opposition for the electorate to stay away, authorities claimed that the election had attracted a 46 per cent voter turnout, a figure that independent sources doubted.

Bashir won 94 per cent of the vote in an election which received international condemnation as a sham.

When Uhuru faced the first petition in August, his main defence revolved around numbers, arguing that the margin of victory of 1.4 million votes more than obliterated complaints on irregularities that the opposition had raised about the election.

WILLIAM RUTO

This time round, the numbers tell the kind of story that Deputy President William Ruto said would never happen in Kenya.

During an interview with an international media outlet, the Deputy President said that Kenyan elections were unlikely to produce a 99 per cent winner, which the last one just did.

The manner in which key players reacted to the annulment of the first presidential election is also a significant factor in establishing a context for the hearing of the fresh petition.

Initially, the Independent Electoral and Boundaries Commission reacted with contrition to news about the annulment of the results of the election.

The electoral body promised amends, including an independent scrutiny of its much-criticised technology infrastructure, and that it would allow observation by representatives of political parties, of the transmission of results during the repeat election.

The IEBC chair even promised staff changes at the commission. 

IEBC

Somewhere down the line, however, the IEBC changed its mind, assuming an increasingly sanctimonious tone about the quality of the election it had run, and even blaming the Supreme Court for annulling what its CEO claimed was the best ever run election in Kenyan history.

If the Supreme Court were to find that the management of this second election also failed to meet the constitutional requirements, this would cast the IEBC as incorrigible, and only able to bungle elections.

With the election body admitting no wrongdoing and claiming to have run a good election, what, in practical terms, would the Supreme Court hope to achieve by annulling this second election?

In such a case, would the fear that a third election is unlikely to be an improvement on the previous two, dissuade the court from annulling the election held on  October 26? 

If the court were to decline annulling the second election only for this reason, could that be seen as an admission that the court was wrong to annul the election of August 8?

Jubilee’s reaction to the annulment also constitutes a major contextual factor as the country goes into the fresh petition.

SUPREME COURT

President Uhuru Kenyatta was unrestrained in his criticism of the Supreme Court and of Chief Justice David Maraga, in his reaction to the annulment.

The campaign of vilification matured into open intimidation following the shooting of the driver for Deputy Chief Justice, Justice Philomena Mwilu, on the eve of the hearing of a petition that sought to postpone the election of October 26, an occurrence widely seen as a warning to the Judiciary.

In the end, the court failed to sit, for want of a quorum. By default, the hearing of a most consequential case was aborted.

With so few opportunities where they can react to their experiences, it is unclear what the Supreme Court justices feel about the vilification they have undergone, or what role this will play in their decision-making in the petition.

One thing is clear though. As a result of the manner in which he carried himself in relation to the court, President Kenyatta is weaker, not stronger.

In his public rage against the court, he has expended much of the moral power he would have asserted as an individual and as the president.

The only power that he retains emanates from fear of a continuation of the vilification, or possible harm to members of the court. In this regard, it is not clear what effect the threat to “revisit” will be on the justices as they sit to listen to the case.

PETITION

The recent hostility will also affect the courtroom. In 2013, the president’s lawyers patronised the judges.

While in 2017, the court allowed no room to be patronised, the president’s lawyers still carried a chip on their shoulders.

After the humbling loss of the recent petition, and with a client who has expended his goodwill with the court, there is likely to be equality of arms in court among the lawyers.

Before the petition that annulled the presidential election of August, there was a myth that no court could ever find the courage to annul a presidential election, however badly run.

Going into court in this fresh petition, it will be clear that any decision, including an annulment, is now possible. In a sense, the first annulment has largely demystified the presidency, making it vulnerable to the courts.

In this way, the constitutional safeguards have been shown as working and should be protected. Kenya would have been in a better place if those concerned had used the recent annulment as an opportunity to make amends, rather than to dig in.

How will the Supreme Court rule?  Unless the court finds that the October election was run better than the one in August, it will have to annul it.

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