No-one believed that this could happen. So what comes next?by Ben Rawlence / September 13, 2017 / Leave a comment
Published in October 2017 issue of Prospect Magazine
Supporters of opposition leader Raila Odinga react to the result in Nairobi. Photo: Getty At 11am on 1st September the streets of Nairobi were unusually quiet. A stray car or two enjoyed the freedom of all three lanes of the normally clogged roads that bisect the city centre. Nearly everyone had stopped work to gather round the nearest television or radio. In the office where I was, workers shushed each other as the screen showed the six red-robed judges of Kenya’s Supreme Court filing into the courtroom. Fingers gripped chairs. Hearts were in mouths. The nation was braced for more violence. The presidential election of 8th August had been, as elections usually are in Kenya, controversial. Despite early and sloppily-drafted statements from election observers declaring that the voting process looked fine, the tallying and transmission of results from the polling station was beset with problems. The opposition candidate, the perennial challenger, Raila Odinga, cried foul and when the incumbent Uhuru Kenyatta was finally announced as the winner at 11pm on 11th August, riots erupted across opposition strongholds. The ensuing clashes with trigger-happy police left at least 24 people dead and hundreds injured. International observers, think tanks and even the New York Times, urged the opposition to “come together” and “move on” for the sake of peace. But Odinga filed suit and on 1st September, the Supreme Court issued its ruling. “Before reading the determination,” said David Maraga, the Chief Justice, “I would like to say that the greatness of a nation relies on its fidelity to the Constitution and adherence to the rule of law.” Was this a warning to the opposition to keep the peace before throwing out the petition? Or was it a note of caution to the president, to prepare him for a shock? Within the next eight minutes it was clear what he had meant. The majority decision of 4-2 was both clear and damning: irregularities had occurred, they were sufficient to affect the integrity of the electoral process; Kenyatta’s victory was annulled and a fresh election was to be held within 60 days. In the office, people stared at each other in disbelief and silence. And then the quiet streets erupted with jubilant shouts, whistles and the honking of horns. No one had expected this. Diplomats at the United Nations had told me the night before that annulling the election was “a political impossibility.” But, at a stroke, the Supreme Court broke the mould, setting a fantastic precedent for democracy around the world that will be cited by electoral challengers for decades to come. The origins of the decision are not only to be found in the courage and incorruptibility of Maraga’s court, but in the long journey that Kenya has taken since the much larger death toll of the bloody 2007 elections. A new constitution, electoral law and an independent process for selecting the Chief Justice all played their part in setting the stage for the historic ruling. Unlike some observers and diplomats, the court understood that justice, not complicity in a flawed process, is the swiftest route to peace. If there is a lesson for others in the Kenyan experience it lies in this slow accumulation of judicial independence over the last decade, one of the few points of light in a country otherwise marred by exorbitant corruption, abuse of office and a terrible record of police killings. The decision is both a victory and an opportunity. The Electoral Commission and the candidates now have a chance to run things properly and in so doing, to defuse the simmering ethnic tensions that have threatened Kenya’s stability at every election since 2007. So far, the incumbent president has not been very presidential, slating the judges and vowing to “fix” them. The electoral commission has announced a new poll for 17th October but without sweeping changes in personnel it is hard to see how they can command the credibility required. Nonetheless, for now, most Kenyans I spoke to felt proud of their country’s great democratic leap forward. Maraga’s court demonstrated that institutions can work, that the rule of law can, on occasion, have muscle. He showed faith, like another of Kenya’s favourite sons, in the audacity of hope.