On 1 September 2017, Kenya became the model for African democracy when its Supreme Court, in a landmark decision, ruled that the result of the 8 August presidential election was ‘invalid, null and void’ and ordered a rerun. The Nairobi-based court predicated the annulment on what it called the ‘irregularities and illegalities’ during the voting process that harmed the credibility of the election results.

However, protests by the National Super Alliance (NASA), a coalition inspired by opposition leader Raila Odinga, have increased tensions in the East African nation in the lead-up to the rerun on 26 October 2017, plunging the country into political turmoil and uncertainty once again.

The protest following the announcement led to the death of at least 37 people, including three children, Kenya’s National Commission on Human Rights said in an October report by Al Jazeera. The commission noted that most of the deaths took place in major opposition strongholds in the slums of the capital and in the western part of the country and were the result of police using live bullets or bludgeoning victims with clubs.

Read: Lessons for Young Africans from the Kenya Elections

The government denied the report, saying it was not aware of any deaths that could be attributed to the direct use of live bullets on demonstrators. Instead, the acting Minister of the Interior, Fred Matiang’i, said the deaths during the protests were instigated by ‘criminal elements.

Chief Justice David Maraga taking oath of office- Photo Credit Wikimedia Commons
Chief Justice David Maraga taking oath of office- Photo Credit Wikimedia Commons

The big issues behind the protest
Much of the violence following the annulment of the 8 August election has come because of the reluctance of the ruling Jubilee Party to meet the demands of the opposition protesters.

The protesters have been protesting against the decision of the Kenyan parliament to pass a controversial amendment to the country’s election laws. The law seeks to declare a presidential candidate automatically the winner if the opposing candidate pulled out of a rerun. This would save the country from a looming political crisis following Raila Odinga’s decision on 9 October 2017 to pull out of the rerun on 26 October. The opposition party has been holding out against any such reforms.

Raila Odinga who is also the opposition leader in this picture taken on May 15, 2017. Photo/Billy Mutai

In a press release on 10 October 2017, Odinga’s party said that President Uhuru Kenyatta’s proposed amendment demonstrated that the Jubilee administration ‘has no intention of competing on a level playing field’. “The only election [the] Jubilee administration is interested in is one that it must win, even unlawfully,” it said.

Kenyatta’s Jubilee administration ‘has no intention of competing on a level playing field’.

As a result, the opposition pushed for systems and personnel changes at the country’s Independent Electoral and Boundaries Commission (IEBC) before the reruns, including dropping the Dubai-based ballots printer, Al Ghurair, and French technology supplier, OT-Morpho. The NASA also wanted the commission’s head, Ezra Chiloba, and the 10 other top officials accused of bungling the 8 August poll, to be shown the door, the Daily Nation reported.

Dr Akombe engaged at a Commission meeting at Anniversary Towers in October. Photo: IEBCKenya/Twitter

The IEBC and its secretariat should be disbanded and the chairman, Wafula Chebukati, should form a new one,” Odinga said in a statement to his supporters in September. “They have wasted taxpayers’ money and therefore they need to go.”

Read: A New Dawn for Democracy as Supreme Court Nullifies Presidential Elections in Kenya

Despite the protests, President Uhuru Kenyatta and his Jubilee administration were not willing to concede. Instead, the government banned protests in three city centres, citing lawlessness.

The government banned protests in three city centres, citing lawlessness.

“Due to the clear, present and imminent danger of breach of peace, the government notifies the public that, for the time being, we will not allow demonstrations within the central business districts of Nairobi, Mombasa and Kisumu,” said the government’s security minister, Fred Matiang’i, in a widely circulated report.

Uhuru Kenyatta – incumbent in this picture taken on August 4, 2017.
Photo/Billy Mutai

Despite the ban, on 13 October 2017, protesters convened to march to the IEBC’s head office, from where the police dispersed them with teargas.

The constitutional crisis debate

One of the most hotly debated aspects of today’s rerun is the issue of the constitutional crisis that could result if the opposition party continued to abstain from the election. That anxiety was, according to the government, a major reason for initiating its last-minute electoral reform.

Constitutional lawyers and political analysts have been debating the possible legal breaches that the government stood to commit if it moved ahead to declare incumbent president Uhuru Kenyatta the winner, unopposed, of today’s polls.

In the press release that preceded their withdrawal, Odinga’s NASA coalition suggested it turned down the opportunity to participate in today’s rerun so that it would constitutionally force the hand of the IEBC.

The five key Kenya opposition leaders during the historic rally to name flag bearer in Nairobi, from left to right – Raila Odinga (ODM), Musalia Mudavadi (Amani), Isaac Rutto (CCM), Moses Wetang’ula (Ford Kenya), and Kalonzo Musyoka (WDM). Photo: RailaOdinga/twitter

“The implication of this provision [of the constitution] is that upon our withdrawal, the election scheduled for 26 October stands cancelled,” the release said. “Our withdrawal from the election requires the IEBC to cancel the election and to conduct fresh nominations.”

As corporate and commercial lawyer Donald Kipkorir wrote on his Twitter account, “With the withdrawal of Baba Raila Odinga from #Ballot2017, Kenya enters into uncharted constitutional and legal waters!”

However, some members of Kenya’s House of Parliament have downplayed the claims of a constitutional crisis and affirmed that the opposition party’s decision will not constitutionally affect the chances of President Kenyatta remaining in office after 26 October.

“[There is an] unfortunate misconception, mostly in the media, that there may be a constitutional crisis in Kenya. This is far from the truth,” Ruth Mwaniki, an MP from Kigumo, told European Union legislators in a recent Joint Parliamentary Assembly, of which Kenya is a member.

Mwaniki said that the president could remain in office for as long as it may take to conduct a fresh election and a new candidate is ready to be sworn in. Thus, even if the electoral body decided to conduct fresh presidential elections, as the NASA is demanding, President Kenyatta would retain his place until a new president is produced.

While Mwaniki’s explanation appears to be a handy solution, it did not seem to be in line with President Kenyatta’s intentions. Speaking after Odinga’s withdrawal from the rerun, Kenyatta said, He [Odinga] is free to withdraw from the race if he is not interested; Kenyans must be allowed to move forward.”

Where does this leave Kenya?

There are few options available to the country at present. While the constitution provides for a situation where a running candidate might not be available for an election, it did not specifically mention the situation of a candidate pulling out of a rerun.

A woman votes in the previous elections in Kenya. Photo: Demosh/Flickr
A woman votes in the previous elections in Kenya. Photo: Demosh/Flickr

As the polls open today, Kenyatta’s government seems to have bypassed the demands of the opposition and moved ahead with declaring him the winner of the elections. While this may provide a quick fix to the malady, it might, in the long run, make the Kenyatta regime unpopular with a large section of the country, especially in opposition strongholds.

There is a chance that the government might concede to the demands of the opposition party to at least overhaul the IEBC following these reruns. However, that does seem unlikely.

The other, equally unlikely scenario would be to appeal to Odinga’s NASA to enter into dialogue with the incumbent government. However, the opposition party might feel that any compromise would wither the trust of its supporters, especially considering that a number of them have already given their lives to the party’s cause.

Everything seems to be gliding towards more violence and as 26 October wears on, many Kenyans will feel overcome by confusion about which way their beloved country is headed.