What makes for an acceptable election? That is the question Kenyans must consider during the next month or so. On September 20th, almost three weeks after the country’s supreme court annulled the presidential election held on August 8th, the judges issued acomplete judgment to explain their ruling. As an indictment of the electoral commission and a statement of the supremacy of law, it was searing and inspiring. The constitutional mandate placed on the commission, said David Maraga, the chief justice, “is a heavy yet noble one” that it had failed to fulfil. But on the question of whether the poll was actually rigged, as the opposition alleges, or as a guide to how to hold another one, it was less definitive.
Compared with the summary ruling issued initially, the full judgment revealed relatively little new. According to the deputy chief justice, Philomena Mwilu, the court was left with no option but to annul the poll because of the “contumacious” approach of the electoral commission. Its hasty announcement that Uhuru Kenyatta had won the election over his long-standing rival, Raila Odinga—before it had access to all the official forms recording the results from all 41,000 polling stations, and its subsequent failure to make those forms available to the opposition and the public, particularly after the court ordered it to—seems to have damned it.
“Elections are not just about the numbers”, said Ms Mwilu. “You only get points for the answers if you show your working”. The contempt shown by the commission, she went on, could be explained only by accepting, as Mr Odinga alleged, either that the electoral IT system “was infiltrated and compromised and the data therein interfered with”, or else simply that the commission “refused to accept that it had bungled the transmission system and were unable to verify the data.”
Supporters of Mr Kenyatta are unlikely to be persuaded by the ruling. The president himself has argued—though his lawyers apparently failed to do so—that if the problems were only with the transmission, as the court seems to suggest, then it should have ordered a recount.
The judiciary now seems set on a collision course with the executive. A day before issuing the ruling, pro-Kenyatta protests closed a few roads in Nairobi, the capital, and Mr Maraga denounced them as “intended to intimidate the judiciary.” He was, he said, “prepared to pay the ultimate price to protect the constitution.”
Yet the bigger problem now is how to organise a new election. By throwing out the election on a matter of process rather than substance, the court has set a high bar for the commission to surmount in its repeat, says Michael Chege of the University of Nairobi. OT-Morpho, the French company which provided the controversial voter verification and transmissions technology, says it will need until October 26th at the earliest to set up the new servers, nearly a fortnight later than the commission’s proposed date of October 17th. Mr Odinga says that unless the entire commission is reformed there should be no election at all.
Should the commission fail to organise an acceptable new poll, Kenya will face a constitutional crisis. The country’s economy, which has already slowed markedly this year thanks to the election, could be knocked for six. Frustration on both sides will mount. That is a risky prospect in a country where the memory of the election in 2007, after which some 1,400 people were killed, is still fresh.
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