(Ethno-political) Strategic Components of the Supreme Court of Kenya’s Presidential Election Decision: Settling for the lesser evil?

by Duncan Okubasu, Lecturer at Kabarak University School of Law and an Advocates of the High Court of Kenya

Few minutes after Kenya’s Supreme Court (SC) nullified President Uhuru’s re-election, his lawyer- Ahmednasir Abdullahi – in a press conference described the decision as political, having nothing to do with the law. Indeed, the demand of the Constitution of Kenya 2010 that a presidential election must be determined within 14 days leaves SC judges with the constrained option of making an ‘intuitive’ decision and then following it with reasons at a later time. In the Raila v Kenyatta Case (2017), the SC completed hearing the dispute on 29 August 2017 and was expected to and did provide its ‘decision’ on 1 September 2017. It indicated in so doing that it would deliver a reasoned judgment within 21 days.

In many senses thus, the decision of the SC was not – at the time of its announcement- an analysis of law and facts in the sense that reasoning over facts and law informed the outcome. It is the other way round. The decisions was an instinctive one presumably based on the presentation of lawyers and a first impression on pleadings conveying the case. In this set up, the only weapon with which the SC could confront President Kenyatta and his main political rival Odinga, the protagonists in the case before it, was a brief decision devoid of reasons. Such a limitation required a calculated assessment of the probable effect of its decision and I think that that is what the SC resorted to.

Within Kenya, it is uncommon to hear criticism about judicial decision resonating at the ethnic orientation of a judge. In legal sense, ethnic (or regional) orientation of actors in public institutions is a constitutional ideal such that in the formulation of institutions – regional balance- is a key factor. Thus, given that three of the judges, including the Chief Justice and his Deputy come from ethnic groups that can be perceived to have largely supported Odinga, the decision is likely to be explained in terms of how ethnic orientation of judges probably influenced the decision (though the case of one Judge, Professor JB Ojwang assaults this hypothesis as he come from the same tribe as Odinga but dissented). Debatably though, such rhetoric is not difficult to justify since one of the lawyers that argued the case for the electoral body against Odinga, Professor PLO Lumumba, (who shares ethnicity with Odinga) had the security of his home beefed-up after death threats. But that is not the likely rational strategic influence of the SC’s decision. The strategic choices of the SC had to be informed by the consequences of deciding the petition one way or the other.

The first option for the SC was to disallow the petition. This was the easier choice for the SC because of two compelling and intertwined reasons. First, the difference in margin between President Kenyatta and Odinga’s votes was way too wide and clear. According to the electoral body, President Kenyatta had garnered more than one million votes ahead of Odinga. Second, the SC had made a decision in 2013 disallowing a similar petition by essentially the same parties on the basis that though there were irregularities in the election, they did not affect the final outcome of the election- or at least that the petitioner had not proved so. Fidelity to the doctrine of precedent, considering that Kenya is a common-law country, was expected to drive the SC to decide the Riala Odinga case (2017) on similar terms. That would mean disallowing the petition. But this easy option- as I explain below- seemed to precondition obnoxious politico-legal consequences, hence its decision.

The difficult option for the court was what it did- allowing the petition. Though the reasons for the decision are yet to be given, the SC essentially departed from Raila Odinga case (2013). To outsiders, the Court had made a ‘historic’ decision- and indeed it was historic viewed as a first time occurrence in Africa- and courageous statement on judicial independence in Kenya and beyond. But to an insider, the SC does not seem to have had a strategically palatable option than that of allowing the petition for the reason I adduce below.

First, at the time the SC was hearing the case, its independence had been severely compromised- by both President Uhuru and Odinga. The latter had, perhaps, been more ruinous to its independence. Odinga had, at first, declined to take the election dispute to the SC over claims that it was compromised, because of the manner in which the Court of Appeal (the immediate lower court to it) had decided a case concerning presidential ballot papers. Second, he had explained that his going to the SC was affording it a second chance to redeem itself from its mistakes of 2013 of confirming Uhuru as president. As if that was not enough and before even the SC could start the hearing his petition, Odinga had clarified that he had other options if the court did not decide the petition in his favour. Essentially, he would lead Kenya into mass action which had the potential of plunging the country into legal and political disarray. That, as far as an insider can see, was the constraining context that made the SC to annul President Kenyatta’s contested victory.

A comforting attribute of this option is that for President Uhuru, a decision in his favour was not fatal. The worst that such could bring was a fresh election- which did not exclude President Uhuru. That would also be the worst take-home for his supporters- and it is important to reiterate that his supporters are largely two dominant ethnic groups in Kenya (Kalenjin and Kikuyu). A fresh election would mean that President Kenyatta and his supporter’s quest to run the state through a ‘winning’ ethno-political alliance would not be obliterated, because the ruling implicitly reserved the opportunity to do so. Indeed, the statements by President Uhuru that he would respect the decision of the SC- even though he did not agree with it- was made in the context of another statement that he was ready for a fresh election- and started campaigning on the very date when the SC made its decision.

For Odinga, a dismissal of the petition by the SC would essentially bring to an end, his desire to also run the state through his ethno-political alliance (largely made up of Luhya, Kamba, Luo, Kisii and Mijikenda communities). A resultant call by Odinga for mass action would in turn probably crystalize into what anybody including the courts feared the most- a breakdown of legal order. The success of such a call was also easy to imagine because in 2016, the greatest controversy in Kenya surrounded the removal of former electoral body commissioners and that came courtesy of periodic protests led by Odinga that were creating an ugly impression about Kenya’s political and economic stability.

For the Court thus, settling for a dismissal meant that it had reached out to virtually all the main ethnic forces supporting Odinga knowing that in so doing, it did not leave out Kenyatta and the ethnic groups supporting him in the cold. This arguably preserved the legal and political order- despite the attacks by President Uhuru that followed a day after its decision – and by extension its own institutional security and that of the Constitution of Kenya 2010.

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