Kenya’s Supreme Court is unable to act at time of crisis

Kenya’s Supreme Court resumed responsibility in an irresponsible way, when it annulled the country’s presidential election in September. Voters will go to the polls tomorrow in an utterly confusing scenario. The rerun election is not a real election, because opposition leader Raila Odinga has told his supporters to boycott the event. Making matters worse, some may try to disrupt the election.

Hans Dembowski

25.10.2017

The Supreme Court earned international praise for putting a check on the government in September. No doubt, its intention was to ensure a fair and honest election. Unfortunately, it only spelled out what went wrong in the election it annulled. It failed to state clearly what measures were needed to prevent the rerun from failing in a similar or even the same way.

The Independent Electoral and Boundaries Commission (IEBC) which had botched the first election is now in charge of the rerun. It is no surprise that Odinga does not trust it. He demanded changes, but the IEBC is still the same. The Supreme Court should have passed orders on this matter for the sake of peoples’ trust.

The judges did not mention personal failures of individual officials. This does not mean, however, that everything can go on as before. Obviously, there were systemic shortcomings. The Court should have said what needed to done to correct those.

If an administrative body fails to do its work properly, the judiciary must set things right. Pointing out the shortcoming, however, is not enough. The administration needs to get clear directions so it will perform better.

It now looks likely, that Kenyatta will be confirmed in office since he is running virtually unopposed. Nonetheless, masses of Kenyans will not consider him legitimate. In their eyes, the entire process lacks legitimacy. Given Kenyans’ recent history, political unrest seems likely. There has been violence already. More is to be feared.

Among Odinga supporters, debate on secession has begun. The last thing Kenya needs, however, is a strong separatist movement. Such movements tend to cause serious problems, but do rarely lead to convincing results.

Some had hoped that the Supreme Court might postpone tomorrow’s elections once more and give further instructions on how to run it. However, the Supreme Court stated today that it could not decide the matter today, because not enough judges could be summoned. One is abroad because of an illness and another one couldn’t come because her bodyguard is in hospital after having been shot. This setting is hardly reassuring.

All summed up, the Supreme Court has stated that it is unable to act at a moment of serious crisis. It actually is a crisis of its own making. Annulling the elections was a sign of the judges’ willingness to assume responsibility. The way they did it, however, has plunged the country even deeper into crisis.