Kenya's Top Court Slams Electoral Body Over Botched Election

Updated on
  • Electoral commission violated the law, Supreme Court says
  • Compromise needed for credible vote: analyst Cheeseman

Kenya’s top court delivered a stinging rebuke of the nation’s electoral commission, identifying a litany of failures in its handling of last month’s botched presidential elections and describing its explanations for the failure of its systems as unacceptable.

The Supreme Court ruled the Aug. 8 election unlawful on Sept. 1, and ordered a rerun. A five-judge bench on Wednesday delivered the court’s detailed judgment, which upheld the main opposition’s complaints that President Uhuru Kenyatta’s reelection was rigged. The court criticized the Independent Electoral & Boundaries Commission’s refusal to comply with its order to grant the opposition access to its servers to verify the results.

Voters Line up outside a polling station on Aug. 8, 2017.

Photographer: Riccardo Gangale/Bloomberg

The commission’s reluctance to comply forced the court to accept the opposition’s claim that the IEBC’s systems were “infiltrated and compromised,” Deputy Chief Justice Philomena Mwilu said. The declaration of the winner of the vote was done without the required forms, she said, calling the absence of the documents “a mystery.”

The declaration was the first time a court has overturned a presidential vote in Africa. A rerun is scheduled for Oct. 17 and opposition leader Raila Odinga has demanded an overhaul of the electoral authority, including the removal of Chief Executive Officer Ezra Chiloba, before he’ll take part.

The election has clouded the outlook for East Africa’s biggest economy where growth is already slowing, and risks tainting its reputation as one of the continent’s top investment destinations. Kenya is the world’s largest shipper of black tea and a regional hub for companies including General Electric Co. and Coca-Cola Co.

The Supreme Court’s own probe discovered some vote-result forms didn’t have or had differing security features and it couldn’t be ascertained whether they were “genuine” or “forgeries,” Chief Justice David Maraga said. The final form used to declare Kenyatta the winner was a copy and “bore neither watermarks nor a serial number,” he said.

“If they are forgeries, who introduced them into the system? If they were genuine, why are they different to others?” Maraga asked. “The illegalities and irregularities committed by the IEBC were of such a substantial nature that no court properly applying its mind to the evidence and the law, as well as administrative arrangements put in place, can in good conscience declare that they do not matter and that the will of the people was expressed nonetheless.”

Political Damage

The court’s indictment of the IEBC and the irregularities by its staff may inflict political damage on the ruling Jubilee Party ahead of the vote, according to Emma Gordon, a senior analyst at Bath, England-based Verisk Maplecroft.

“Whether or not the Jubilee Party is directly implicated, the ramifications are significant,” Gordon said by phone. “The perception is that the state is the government and if a state institution is being criticized, blame goes to the Jubilee Party as well.”

Odinga, a former prime minister, waged unsuccessful presidential campaigns in 1997, 2007 and 2013. The Supreme Court threw out his allegations of rigging in the 2013 vote that Kenyatta won, a ruling Odinga labeled a “travesty of justice.”

Maraga said that while there was evidence of “systematic institutional problems” at the electoral body, the court was unable to find evidence that any individuals “played a role in committing illegalities.”

“We are therefore unable to impute any criminal intent on IEBC, its chairman or any other commissioners,” he said.

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