The CIHA Blog is pleased to post the final installment of our series on the 2022 Presidential elections in Kenya. We thank Timothy Khabala for his informative and detailed analyses.
The following is the final post in the series.
By Timothy Khabala, Luce Graduate Fellow from Hekima Institute of Peace Studies and International Relations. Timothy has trained elections officers at a constituency level and subsequently served as a Presiding Officer at a polling station.
The Supreme Court of Kenya (SCOK) on Monday 5 September 2022 unanimously upheld the election of Dr. William Ruto and Mr. Rigathi Gachagua as President-elect and Deputy President-elect, respectively. The seven-judge bench led by Chief Justice Martha Koome dismissed the presidential election petitions on the grounds of failing to prove beyond reasonable doubt that there was electoral impropriety to warrant annulment. This ruling, which is an abridged version of the judgement, paved the way for the swearing in of Dr. Ruto as the fifth President of the Republic of Kenya on Tuesday 13 September 2022 (Philip Mwaniki 2022), with Mr. Raila taking the official opposition leader position. The full version of the judgement that contains the Court’s recommendations would be issued on/or before Monday 26 September 2022 (21 days from the day of judgement).
‘Truths, half-truths and no truths’: the intrigues of Presidential Election Petition No. E005 of 2022
The Monday judgement brought to finality any contestation on the 2022 presidential elections. The contestation was presented in eight petitions. Due to similar cross-cutting issues, the petitions were consolidated and titled “Presidential Election Petition No. E005 of 2022,” with Raila Odinga as the principal petitioner and 16 others vs. William Ruto and 10 others; Law Society of Kenya & 4 others (Amicus Curiae).
SCOK Judges in Presidential Election Petitions of August 2022 (L-R) Hon. Justice Isaac Lenaola, Justice Dr. Smokin Wanjala, Hon. Deputy Chief Justice Philomena Mbete Mwilu, Hon. Chief Justice Martha Koome, Justice Mohammed K. Ibrahim, Hon Lady Justice Njoki Ndung’u, Hon. Justice William Ouko PHOTO | COURTESY | SCOK (August 2022)
The consolidation yielded nine issues for determination: the integrity, verifiability, security, and transparency of the technology deployed by the IEBC; possible interference with the uploading and transmission of Forms 34A; the possible difference between Forms 34A uploaded on the IEBC Public Portal and those received at the National Tallying Centre; the negative impact of the postponement of Gubernatorial Elections in Kakamega and Mombasa counties (Raila’s strongholds) and other Constituencies and electoral wards on Raila’s vote count; unexplainable discrepancies between the votes cast for presidential candidates and other elective positions; whether the verification, tallying, and declaration of presidential results were in accordance with Article 138(3)(c) and 138(10) of the Constitution of Kenya 2010; whether the declared President-elect attained 50%+1 of all the votes cast in accordance with Article 138(4) of the Constitution of Kenya 2010; whether there were irregularities and illegalities of such magnitude as to affect the final results of the Presidential Election; and lastly what reliefs and orders the Court could grant/issue. After sitting for a three-day hearing, the SCOK made a determination relating to the above issues. All issues raised were dismissed by the SCOK, consequently declaring the election of Dr. Ruto as President-elect to be valid under Article 140(3) of the Constitution of Kenya 2010 (Kenya Law p1-27). Nonetheless, in the course of the hearings, some of the petition(s) prayers were granted. For instance, Raila and other petitioners were granted access to ballot boxes for 15 polling stations for inspection, scrutiny and recount of votes. Further, Raila was granted supervised access to the IEBC servers used for storing and transmitting voting information from polling stations (Joseph Wangui 2022). However, there were no glaring issues that emerged from the scrutiny.
Verification and recount of presidential votes from select polling stations by SCOK officials at SCOK premises on August 31 2022 in the presence of legal officers party agents from the interested parties and security officers PHOTO | Jeff Angote | NMG
The verdict by the SCOK was hailed by the President-elect and his supporters, who termed it the height of the independence of the judiciary. This comes against the backdrop of the view that the principal petitioner Mr. Raila had the support of the outgoing President and the purported state machinery (what was referred to as the ‘deep state’) and ‘capable of influencing’ the judiciary. The allegation of state interference with the functioning of the IEBC was one of the points of contention in the petition hearing. IEBC Commissioner Guliye, in his affidavit, claimed that the National Security Advisory Committee (NSAC) warned the Chair against declaring Dr. Ruto as the president-elect lest the country descended into chaos (Annette Wambulwa & Susan Muhindi 2022). The petition hearing at the SCOK was characterized by sensational presentations by the different legal counsels. Quotes from Kenyan nursery rhymes to those from famous playwrights in history like William Shakespeare and Solomonic wisdom from the Bible were used by legal counsels from both sides. In her remarks, on behalf of the seven-judge bench, the Chief Justice Hon. Koome appreciated the comic effect the presentations brought in the courtroom but said they (SCOK) were dismayed that most of the issues amplified by the sensational presentations were ‘no more than hot air that took the Court on a wild goose chase that yielded nothing of probative value” (Dennis Musau 2022). The Chief Justice expressed the Court’s displeasure by noting that the petition was, to a great extent, based on falsehoods by some lawyers and falsified documents and online logs by witnesses, backed by sworn affidavits (Joseph Wangui, Brian Wasuna & Richard Munguti 2022). This watered down the quality of evidence presented before the Court.
We respect, but do not agree with the judgment – Raila Odinga remains our recognised leader
While President-elect Dr. Ruto’s supporters praised the SCOK’s verdict upholding Dr. Ruto’s win, Mr. Raila Odinga’s supporters, who included the outgoing President Mr. Uhuru Kenyatta, said they respect the verdict but do not agree with it. In his first public address after the August 9 2022 elections, President Kenyatta promised a smooth and peaceful transition of power to his successor Dr. Ruto. However, the President insisted that Mr. Raila Odinga remains his leader. In what seems to be a parable-laden speech, President Kenyatta said “the country missed an opportunity to elect a person who would have united and healed the country.” The President, who was yet to congratulate his successor, revisited his remarks made months prior to the elections that “it was time for other communities of Kenya to lead the country.” He accentuated this remark in his speech by a firm claim that he had seen elections divide the country (along ethnic lines) and thus ‘denying’ Mr. Raila Odinga the opportunity to lead the country was an opportunity lost to break the cycle of the dominance of certain communities (Samwel Owino & Ndubi Moturi 2022). President Uhuru Kenyatta, the fourth President of the Republic of Kenya, is the son of Kenya’s founding President, the late Mzee Jomo Kenyatta. They are from the Kikuyu ethnic community in Central Kenya. Young Kenyatta succeeded the late Mwai Kibaki, who was from the same ethnic community. The late Kibaki’s predecessor and the second President of the Republic of Kenya, the late Daniel Arap Moi was from the Kalenjin community from the Rift Valley region. The late Moi was a political mentor to both the outgoing President Kenyatta and President-elect Dr. Ruto. Dr. Ruto and his mentor, the late President Moi, come from the same ethnic community – the Kalenjin. This dominance has incessantly posed a problematic equation in Kenya’s political space that descends to incidences of animosity and at times, violence during general elections. Indeed, if President Uhuru Kenyatta’s utterance is to be perceived as one of the reasons he put his weight behind Mr. Raila Odinga’s candidacy in 2022, then it suffices to celebrate an element of patriotism in a man who for 10 years was the political kingpin of the ‘superior’ ethnic community – the Kikuyu. The Kikuyu in Kenya have created a self-seeking narrative of equality in inequality akin to ‘the pigs’ in George Orwell’s 1945 satire ’Animal Farm.’ The Kikuyu disproportionately credit themselves for their role in the fight for Kenya’s independence, due to the focal nature of the Mau Mau rebellion that was dominated by the Kikuyu. Just like in the Animal Farm’s abridged commandment; “All animals are equal, but some animals are more equal than others… “ the Kikuyu community perceives itself as more equal than other ethnic communities. They have always attempted to peddle this narrative in bargaining and determining Kenya’s Executive leadership. This was also evident in the 2022 general elections, where both Ruto and Raila had to pick their running mates from the Kikuyu community.
However, the naysayers to President Uhuru Kenyatta’s show of patriotism by backing Mr. Raila would interpret this same act as the perpetuation of classism. President Uhuru and President-elect Dr. Ruto, though both political mentees of the late President Moi, the two come from different backgrounds. Mr. Uhuru’s background is that of affluence, political family lineage (the father was the founding President), multimillion family business entities that have stood the taste of time and western (global north) educated. On the other hand, Dr. Ruto is the total opposite. He is locally educated (to a PhD level), humble (unknown) family with no political prominence and self-made millionaire. Prior to the 2013 elections, the two were adversaries who later united as International Criminal Court (ICC) indicted comrades (BBC Africa 2012). The first term of the duo (2013 – 2017) was characterised by public ‘political bromance’. A couple of flagship projects were launched through the President’s delivery unit (delievery.go.ke). The cordial relationship changed drastically after the 2017 election. In an alleged spirit of unifying the country and maintaining peace, President Uhuru consequently extended an olive leaf to his close rival and official opposition leader, Mr. Raila Odinga (self-declared people’s President) to a collaborative working arrangement in 2018 through the famous ‘Hand Shake’ (The Standard 2020). The handshake became ‘infamous’ among the supporters of the then Deputy President and now president-elect, Dr. Ruto, who was pushed to the periphery of the Executive operations while Raila moved closer to the centre of power. Ruto later broke ranks with his boss and joined a newly founded political party United Democratic Alliance (UDA) in December 2020 and became its presidential nominee candidate for the 2022 presidential elections. Ruto then began creating a narrative of ‘othering’ the likes of President Uhuru Kenyatta and Raila Odinga, calling them ‘political dynasties.’ He identified himself with Kenyans on the lower cadre of the economic pyramid by referring to himself as a ‘hustler’ thus one of them. He endeared himself to this class of Kenyans by sharing his success story from ‘selling chicken’ in the village to the second most powerful person in the country; the use of the wheelbarrow as a symbol for this political party and promise of an economic model dubbed ‘bottom-up’ that would focus at those at the bottom of the economic pyramid (UDA 2022). He became a darling of the Boda bodas (riders who offer transport services using bicycles and motorbikes) and Mama mbogas (green grocers especially women who sell their groceries in small quantities under small shades in residential areas and open air markets).
President Uhuru Kenyatta (L) and the then opposition leader Raila Odinga handshake on March 9 2018 PHOTO | FILE | R euters
Breaking the dominance of the two ethnic communities through the ballot, remains one of the elephants in the political governance room of Kenya. According to the 2019 Kenya Population and Housing Census by the Kenya National Bureau of Statistics (KNBS 2019), there are 40(+) ethnic groups in Kenya. However, since becoming a republic in 1964, the five Presidents (including President-elect Dr. Ruto) have come from two ethnic communities; the Kikuyu and the Kalenjin. Mr. Raila Odinga, who has been unlucky at the presidency five times, comes from the Luo community of the western region of Kenya.
Raila’s misses: Perpetual opposition leader and a democracy agent?
The Rt. Hon. Raila Odinga, fondly known as Baba (father), Agwambo (the mystery), and Jakom (chairman), has had a stab at the presidency five times with no success. However, one would not hesitate to appreciate his continued presence and contribution to Kenya’s politics. His contribution towards the growth of democracy in Kenya cannot go unnoticed. Raila Odinga’s public and political star began being noticed after the August 1982 attempted coup to overthrow the government of the second President Daniel Moi. Raila was implicated as one of the masterminds of the coup against Moi’s autocratic administration. He was charged with treason and imprisoned for six years. Upon his release in 1988, Raila Odinga agitated for democracy and respect for human rights by Moi’s authoritarian regime. His agitation bore fruits with the repeal of section 2A of the Constitution of Kenya 1963 in 1991. This saw the re-introduction of multiparty politics and the introduction of a term limit to the Presidency (Barrack Muluka 2021). Consequently, numerous political parties participated in the 1992 elections and the 1997 elections, the latter having been the last term for the longest serving President, Moi as a result of repealing section 2A. The exit of Moi after his last term in 2002 also witnessed the end of four decades of Kenya African National Union’s (KANU) rule. Raila had his first shot at the presidency in 1997, and in a show of statesmanship, he shelved his bid in 2002 and rallied his support behind Mr. Kibaki, handing President Kibaki an overwhelming win never recorded again in Kenya’s multiparty elections. Raila has continued to play a crucial role as opposition leader, putting the governments of the day in check. Today Kenya boasts of an elaborate home-grown Constitution that endeavors to guard the independence of independent state agencies like the IEBC and judiciary. Raila’s footprints are evident in the Constitution of Kenya 2010 making process. He is highly celebrated as being the father and great defender of devolved governance in Kenya, now in its 11th year. Devolution has transformed Kenya tremendously by bringing development and government services closer to the citizenry. Raila’s petitions to the SCOK three times (in 2013, 2017 and 2022) have also contributed immensely to refining Kenya’s electoral laws. His decision to rely on the judicial court as opposed to the public opinion court (as witnessed in 2007) has helped build confidence and trust in the judiciary. It is worth noting that in the aftermath of the 2007/2008 post-election violence (PEV), the ICC picked up interest in the Kenyan case based on the notion (among other notions) that the Kenyan judiciary did not exhibit the independence that would guarantee impartiality and accordingly discharge justice to the PEV victims. Though Raila has lost a chance at the presidency five times, he continues to play a critical role as a formidable opposition leader, a crusader for democracy and the father of devolution. He has also been lauded for having been conscious about gender parity when he picked Ms. Karua as his Deputy President nominee. Raila still has a job cut out for him during President Ruto’s regime. Nevertheless, the astuteness of Dr. Ruto in politics too cannot be underestimated. Dr. Ruto has never lost any political seat he has vied for; he is the first Deputy/Vice President in the history of Kenya to have ascended to the Presidency by the ballot while serving the office, and he is the only presidential candidate who clinched the presidency at the first attempt since the re-introduction of party politics in Kenya.
In concluding, the petitioning of the presidential elections for the third time is a clear indication that the IEBC has not yet garnered universal public confidence and trust in the internal management of the Commission and elections. Aspects of an imperial chair and lack of collegiality in the Commission’s operations is a glaring malfunction at the agency that requires urgent fixing, anchored in proper legislation and law. Nevertheless, these processes and especially the respect for the SCOK judgements have placed Kenya a notch higher in the region on matters of electoral law and judicial independence, thus acting as a benchmark for reference. To Kenyans, this has contributed towards a peaceful coexistence, even though this status is still threatened during elections. Kenya’s democracy continues. God bless Kenya and its people.