Title: Kenyan Democracy and the Rule of Law

On August 8, 2017, Kenyans went to the polls to elect a president, members of parliament, and officials for the country’s various subnational political jurisdictions. The country’s Independent Electoral and Boundaries Commission (IEBC) subsequently declared the incumbent President Uhuru Kenyatta (of the Jubilee Alliance party), who had received 54 percent of the votes cast, the winner of the presidential contest. Nevertheless, opposition leader Raila Odinga alleged that the process had been marred by irregularities and refused to accept the results. He and his political alliance, the National Super Alliance (NASA), took their case to the Supreme Court of Kenya.

On September 1, the Supreme Court of Kenya annulled the presidential election and ordered that a new election be held within 60 days to determine who was to lead the country. Odinga and the opposition welcomed the ruling; Kenyatta and his supporters, on the other hand, expressed anger at the court’s decision but, nevertheless, agreed to abide by it. Many observers considered the ruling historic and an important contribution to judicial independence and the building of effective democratic institutions in Kenya.

The rerun presidential election was held on October 26, 2017, but Odinga, claiming that he and his party lacked confidence in the credibility of the process, refused to participate. The results, as announced by the IEBC, showed that Kenyatta had captured 98 percent of the votes. Odinga immediately rejected the results, characterizing them as a “mockery of elections.” However, he did not take his challenge to the Supreme Court as he had done with the previous results. Nevertheless, private citizens challenged the rerun presidential election results in several petitions to the Supreme Court. On November 20, 2017, the Supreme Court ruled that the rerun presidential election had been undertaken in accordance with all the constitutional requirements and hence President Kenyatta had been duly elected.

This time, however, Odinga refused to accept the decision of the Supreme Court. In reaction to the ruling, he declared that “no matter what the courts [have] said, he would not accept the results [of the election]” and that he would “not accept Uhuru Kenyatta as the legitimate president.” Odinga and his supporters announced that he would be sworn-in as the “people’s president” at a ceremony on December 12, 2017. However, he later called off the ceremony, a decision the international community perceived as a positive contribution to the reconciliation process. Subsequently, to the disappointment of many international observers, Odinga swore himself in as the “people’s president” on January 30, 2018. The other three leaders of Odinga’s NASA, including the vice-presidential candidate, Kalonzo Musyoka, did not attend the ceremony.

For Kenya to function, the supremacy of law must be the guiding light and the basis for all government actions –   President Kenyatta said as much during his inaugural address to the nation: “However serious our grievances, the law must reign supreme. That law should be the refuge for every Kenyan. None of us should break outside the law, or constitutional order, whatever our grievances or protestations.” There must be a final legal authority, and that authority must be the Supreme Court, whose judgment must be respected by all citizens.

It is important to note that the opposition has claimed that the “election was stolen” and that the electoral system was rigged against them. In a democratic system, issues such as conflicts over the results of elections must be resolved peacefully through the courts. In Kenya, the constitution grants the Supreme Court the “exclusive original jurisdiction” to resolve disputes over presidential elections. Hence, both the opposition in particular and Kenyans in general should allow the courts to resolve all issues associated with the presidential election.

It is ironic that during his swearing-in ceremony, Odinga pledged to “preserve, protect, and defend the Constitution of Kenya.” Perhaps it did not dawn on him and his supporters that the same constitution he was pledging to protect and defend does not make any allowance for the creation of a parallel government. Further, the constitution specifically grants the Supreme Court “exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of the President” and that “its decision shall be final.” The opposition’s extra-constitutional attempt to seize power is a disservice to Odinga – who is considered one of the most important contributors to Kenya’s transition to multiparty democracy – and weakens the democratic institutions that Odinga has helped build.

Kenya, like many other countries in Africa, has been struggling since gaining its independence in 1963 to build and sustain a democratic governance system bolstered by the rule of law. The hope for Kenyans was that the 2010 constitution would help them set up development-oriented governance processes that enhance the peaceful coexistence of the country’s various subcultures, provide self-actualizing opportunities for all citizens, adequately constrain civil servants and politicians, and promote respect for human rights. During the 2017 elections, the Supreme Court had an opportunity to finally flex its independent strength. Unfortunately, the decision by Odinga and the opposition to reject the Supreme Court’s ruling does not bode well for an effective rule of law system in Kenya.

Today, Kenya has come to a fork in the road to peaceful coexistence and sustainable development – the path the country’s leaders choose to take will determine the extent to which the country can continue to peacefully build its democratic institutions, provide opportunities for all citizens to engage in self-actualizing activities, and minimize potential for ethnic conflict. Unfortunately, by refusing to abide by the Supreme Court decision regarding the presidential election, the opposition, led by Odinga, a father of multi-party democracy in Kenya, has already chosen the path that is likely to ferment violence and instability.

The government, of course, is not free from blame. It too has contributed to the deteriorating political situation in the country. In addition to disobeying a court order to allow television stations to return to the air, the government has also engaged in activities that have undermined the country’s democratic institutions, including its continued claims that the judiciary is biased, suffers from poor leadership, and acts with impunity. The law has a unique potential to keep Kenyan society from descending into crippling anarchy and morass of violence from which the country may take long to recover. Hence, it is critical that Kenya’s civil servants and political elites lead by example and not place themselves above the law.

Kenya’s political system is built on a separation of powers with constitutional checks and balances. Nevertheless, social checks on the government, which include a robust civil society and independent media, are critical. Governance must be based on justice, fairness, respect for the rights of others, and a general belief that all Kenyans, regardless of their position in life, have something to contribute to the overall health of the polity.

The way forward for Kenya calls for a national dialogue on governance that must include all citizens who want to participate. The opposition and the government must come to the table and participate in good faith. But, before this can happen, the opposition must abandon its efforts to establish a parallel government. It must accept the decision of the Supreme Court that upheld the results of the October 26, 2017, presidential rerun election and accept Uhuru Kenyatta and William Ruto as the legitimate executives of the Republic of Kenya. The new Government must acknowledge the grievances of its citizens, including those of the opposition and, in addition, protect the right of all Kenyans to peacefully protest and these protesters must be allowed to benefit from the protection of the law.

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John Mukum Mbaku is Brady Presidential Distinguished Professor of Economics and John S. Hinckley Fellow at Weber State University. He is also a nonresident senior fellow at The Brookings Institution in Washington, D.C., and an attorney and counselor at law, licensed to practice in the Supreme Court of the State of Utah, the U.S. District Court for the District of Utah, and the U.S. Supreme Court. He received his PhD in economics from the University of Georgia and his JD in law and graduate certificate in natural resources and environmental law from the S. J. Quinney College of Law at the University of Utah. His latest book is Protecting Minority Rights in African Countries: A Constitutional Political Economy Approach (Edward Elgar, 2018). On May 22, 2017, John Mukum Mbaku, was admitted and qualified as an Attorney and Counselor of the Supreme Court of the United States.