Kenya’s Independent Electoral and Boundaries Commission announced on 15 August 2022 that Deputy President William Ruto had won the 2022 presidential election following a close, tense race. The commission gave the count as 50.49% for Ruto against rival Raila Odinga’s 48.85%. This was immediately disputed by Odinga’s campaign and four of the seven electoral commissioners, who described the final tallying process as “opaque”.
As he had done in 2013 and 2017, Odinga petitioned the Supreme Court. He alleged several irregularities, including fraud, voter suppression and impunity by the commission’s chair, Wafula Chebukati. He claimed that Chebukati had breached the constitution and acted unilaterally.
A unanimous ruling, read out by Chief Justice Martha Koome on 5 September 2022, rejected all these claims. Accordingly, Ruto will be officially sworn in on 13 September 2022, as the fifth president of Kenya, East Africa’s most stable democracy.
Casual observers may be tempted to regard Odinga, taking the fifth shot at the presidency, as a sore loser. This is especially so given the supreme court’s dismissal of a key plank of his 2022 petition as “nothing more than hot air”. On the contrary, it is important to recognise the role that his legal petitions have played in helping improve, entrench and deepen democracy in the country.
Also, as indicated by the court ruling, Odinga’s recent petition will most likely result in “far-reaching” reforms in the electoral commission. That would be good for the electoral system in particular and democracy in general in Kenya.
Odinga’s enduring legacy
At the very least, Odinga’s petitions have achieved important reforms and shifts in public attitudes. Kenyans now recognise the courts as the final arbiter of election conflicts. This is significant in a country where a post-election dispute in 2007 led to widespread violence in which more than 1,000 people were killed and hundreds of thousands internally displaced.
Odinga has granted the judiciary the opportunity to establish and enhance its independence. His petition to the Supreme Court after the 2017 presidential election alleged significant levels of fraud. It claimed the commission had failed to electronically transmit the results as required by Kenyan law, in order to minimise fraud. The Supreme Court’s ruling in 2017 emphasised that there were problems with transmission and verification of the results.
This contributed to the reforms that were made in preparation for 2022. Thanks to his 2013 petition and other cases related to this petition, for example, the court ruled that results at the polling station were final. This made it mandatory to post polling station results at each station for the public to view and to compare with the online portal run by the Independent Electoral and Boundaries Commission. Compared with 2017, this made the election in 2022 more efficient and transparent.
During the 2022 election cycle, there was no internet shut-down, there was no arrest of opposition leaders, and there was no hint that the incumbent, Uhuru Kenyatta, was opportunistically seeking ways to change the constitution to stay in power indefinitely.
Despite the controversy over the official results, the election was transparent, peaceful and credible. Voters conducted themselves with dignity. The results were transmitted in record time.
Finally, but no less important, these changes helped Odinga’s supporters in particular and Kenyans in general appreciate the role that peaceful resolution of election conflicts can play in deepening democratic governance.
Who are the winners?
There are scarcely any losers in the conclusion to Kenya’s election. Kenya’s is a relatively young democracy with a judiciary that is still struggling to build its capacity and enhance and safeguard its legitimacy. Its 2022 election court decision is a win for judicial independence and legitimacy in Kenya.
The opposition also won. Although disappointed by the court’s ruling, its leader, Odinga, accepted it and in doing so he reaffirmed his fidelity to the rule of law. Odinga and his team have been known to argue that theirs is a struggle to bring transparency to the country’s electoral process and strengthen the country’s democratic institutions. Though they did not capture enough votes to win, they succeeded in improving the country’s electoral system and its democracy. That should be considered a win for them.
Kenyans in general also won. Kenya is no stranger to post-election violence. However, since it adopted a new constitution in 2010 and introduced an independent judiciary, the latter has helped to minimise post-election violence. Reflective of a country that has developed relatively strong democratic institutions, an independent judiciary and a relatively robust electoral system, the opposition has accepted the court’s ruling and has promised to continue to institutionalise democracy.
This is a win for all Kenyans and an important lesson in nation building and peaceful coexistence for the country’s neighbours.
Regular, fair, transparent, inclusive, and credible elections are an important element of a fully functioning and effective democratic system. They provide a legal mechanism for citizens to choose individuals to serve in government. They discipline recalcitrant, corrupt and poorly performing public officials. Finally, such elections compel candidates for public office to canvass issues that affect the lives of citizens.
For elections to do this, however, they need finality. This is partly because there is always the possibility that some parties will dispute the official results. So a country needs a legal mechanism to peacefully resolve all elections-related conflict to the satisfaction of all citizens.
The Kenyan judiciary has proven itself capable of exercising independent judgement and bringing finality to elections.