Nullification of Kenya’s Presidential Election: A Wake-up Call for Africa (and the World!)

By: Michael Ochieng’ Otieno, SJ, Hekima Institute of Peace Studies and International Relations (HIPSIR)

In July 2009, on his first trip to sub-Saharan Africa after taking office, President Barack Obama visited Ghana due to its unwavering democratic record. Speaking to the members of parliament, President Obama said: “Africa does not need strongmen, it needs strong institutions.” This statement made much sense to me on 1 September 2017 when the Supreme Court of Kenya under the leadership of Chief Justice David Maraga, a Seventh Day Adventist, nullified the presidential election that was held on 8 August 2017 on the grounds of “irregularities and illegalities” that were committed by the Independent Electoral and Boundary Commission (IEBC) and the failure of the latter to conduct “election in a manner that is consistent with the dictates of the constitution.”

However, I think Africa needs strong (wo)men in a different sense of the word. Rather than dictators and authoritarian leaders, which is what is typically implied in the Western use of the term “strongmen”, I believe we need men and women with strong moral beliefs about what is right and who will act to uphold strong institutions. So in this sense, I believe we need both strong (wo)men as well as strong institutions. In his introductory speech before reading the ruling on the presidential election petition, Chief Justice Maraga said: “the greatness of any nation lies in its fidelity to the constitution and adherence to the rule of law and above all the fear of God.” As someone who participated in the election and felt the process of election was not free and fair, when I heard this profound statement by Justice Maraga, I anticipated he would surprise many Kenyans in his final determination. And, indeed, the ruling caught many by surprise. The ruling made Kenya the first country in Africa to nullify a presidential election. I, therefore, believe that the continent needs more men and women who exude courage like Justice Maraga to defend our constitutions and ensure that laws and institutions are adhered to and strengthened.

This historic ruling has restored the faith in the rule of law in Kenya. It is a victory for the 2010 Kenyan constitution (which has been ranked one of the progressive constitutions in Africa) and which boasts clear demarcation of powers with checks and balances. The ruling is also a victory for Kenya’s judiciary as it has restored people’s faith and confidence by demonstrating this institution’s independence. The Kenyan judiciary had lost its credibility and legitimacy after upholding the 2013 presidential election that was also highly contested.

We are waiting for the next elections to occur, currently slated for October 26, 2017. In the meantime, it is evident that the magnitude of the evidence of electoral malpractices as presented by the petitioner in the Supreme Court and the inability of the respondents to refute the evidence presented are enough grounds for disbanding the Independent Electoral and Boundaries Commission (IEBC) and prosecuting its officials. This should serve as a lesson for the next election officials since as it is currently constituted, the IEBC has lost its credibility and legitimacy to conduct a new election. There is dire need to reform the IEBC if Kenya is to realize credible elections in the future and it is my hope that the IEBC can quickly be strengthened into an institution that can retain the country’s trust.

Several news and opinion pieces, listed below, have also recently discussed this watershed moment in Kenyan history:

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