Nairobi’s top judges demand election rerun within 60 days

Raila Odinga, the opposition candidate who had come in second in August, had gone to court, challenging the result because of alleged flawed computer processing. His claims obviously were more substantial than initially believed.

The Court’s message is that even the head of state is not above the law, and it will resonate far beyond Kenya’s borders. Elections and their results tend to be controversial in many African countries. It also matters that Odinga had initially expressed little trust in the judiciary. He only turned to the Supreme Court after his attempts to rally mass protests had failed.

The judges ordered that new elections must take place within 60 days. I think it is unfortunate, however, that they will apparently only publish the full judgment in three weeks. That is a very long time given that the judges ordered the rerun election to be held within little more than eight weeks. The authorities in charge of the elections must obviously be told what exactly went wrong last time in order to be able to avoid those flaws the next time.

It is even more important that voters are told the reasons for the annulment. Who they vote for may well depend on that information. Nowhere in the world do citizens like to be cheated. If it turns out that the computerised vote tallying was seriously manipulated, the opposition will get a boost. If, on the other hand, the Supreme Court’s ruling is based on procedural shortcomings with little substantial impact, voters may feel harassed and be more likely to rally around the candidate who came in first the last time.

President Uhuru Kenyatta’s initial reaction to the Supreme Court ruling was largely responsible by the way. He said he accepted the ruling even though he disagreed with it. He also called on Kenyans to maintain peace and live as neighbours. One of his statements was a bit ambiguous, however. He said that the decision of 45 million Kenyans cannot be annulled by six people, referring to the Supreme Court judges. This statement can be understood in two different ways:

• It may mean that the Supreme Court’s decision was not legitimate.
• It may mean that Kenyatta is confident to have the support of the majority so he expects to prevail in the rerun election.

The former message is unacceptable since the judges did not overturn the voters’ decision, but argue that it was not tallied appropriately, which means that voters’ real decision may actually differ from the results that were announced. The latter message, however, is fine. A presidential candidate who does not believe he has strong support, need not run at all. Depressingly, Kenyatta later showed that the first reading is the accurate one. He called the judges "crooks", spoke of a problem that needs fixing and repeadted that "the will of the people cannot be overturned by a few people".

When I first read the news about Kenya yesterday, I worried that the Court decisions might trigger violence. A Kenyan lawyer I am in touch with reassured me however. In her eyes, there is no need to worry as the judges' decision "is exciting for us and almost guarantees us peace in the near future". She certainly understands her country much better than I do.

(Updated: Monday 4 September 2917)