Kenyans are given to bouts of euphoria. Once ranked as the most optimistic people in the world, it is a society almost congenitally programmed to look on the bright side of life and to seek out silver linings on even the darkest of clouds. It is famously the land of 'Hakuna Matata', which for anyone who’s seen Disney’s The Lion King can recite, is “a problem-free philosophy”.
Our irrational exuberance is once again bubbling up to surface in the wake of the Supreme Court verdict that annulled President Uhuru Kenyatta’s barely three-week old reelection. In a sense, it is understandable. It has been a tense time, filled with trepidation, after yet another rapturous voting day, invested with all the hope for better days the country could muster. This is despite the knowledge that although the country has held regular elections throughout its 50 years of independence, they have never resulted in truly meaningful, lasting change.
Even the 2002 election – perhaps the most ecstatic of them all, given it was bringing the curtain down on the 24-year despotic and kleptocratic reign of Daniel arap Moi – only inaugurated Mwai Kibaki’s turn to eat. Pretty soon, the Kenyans who had been going around effecting citizen arrests on corrupt cops in the belief all had changed, were treated to a rude shock when reports of grand corruption at the highest level began to surface with increasing regularity. So much so, that the President’s own anti-graft czar had to flee the country. Corrupt ministers are "eating like gluttons" and "vomiting on the shoes" of donors, declared the British High Commissioner, Edward Clay.
Anyway, back to the Supreme Court ruling. Just like the 2002 poll, the election that the court has just voided was manifestly full of irregularities. However, 15 years ago it did not much matter. The vote against Moi’s 'Project' was so overwhelming that the regime had little choice other than to concede. In any case, electoral reform at the time mainly consisted of a 'gentleman’s agreement' that allowed the opposition a say in the composition of the electoral commission.
The integrity of the process today matters much more than it did a decade and a half ago. Elections are much more closely fought and the electoral infrastructure is much more elaborate. Methods for stealing them have also become more intricate and difficult to detect. By the time Kenyans went to the polls nearly a month ago, laws governing the electoral process had been passed and largely clarified by the courts. On voting day, everything went smoothly. But, like before, during the tallying and transmission phase, it all went horribly wrong.
The annulment is a very big deal and definitely worth celebrating. Along with overturning an injustice and reinforcing Kenya’s democratic credentials, by cementing the Supreme Court’s credibility, it has made future 2008-type post-presidential-poll violence much less likely. For once, Kenya the state has stood up for Kenyans, and that is huge. It also reinforces the fact that electoral processes and electoral laws matter. Which cannot be overstated in a country where now five of the last six presidential elections have been stolen. But we should be careful not to get carried away.
First, there were problems with the court declaration itself. One of the allegations that had been put forward by the petitioners was that the incumbent had abused his office by using public resources and officials to campaign. The judges seemed to gloss over this when they found there was no wrongdoing, despite glaring proof.
Further, just as Wafula Chebukati’s declaration - on the day he pronounced President Uhuru Kenyatta’s win - that Kenya had been raptured into the pantheon of mature democracies turned out to be fake news, so will the similar affirmations that the Supreme Court has secured Kenya’s democracy. It hasn’t.
Sure, the judgement is a giant leap forward. But one decision does not a democracy make. Though it may have created possibilities for better, more accountable, elections. Sadly, Kenyans all too often want to linger in these giddy moments of possibility rather than to do the hard work of translating them into reality. And this is when our enemies strike.
Of immediate concern is the potential for a backlash from an Executive stung by what it considers to be a judicial uprising. "If you rattle a snake, you must be prepared to be bitten by it," John Michuki famously warned us in 2006, and President Kenyatta has just been rattled. He is threatening to bite. Whether it’s Kenyatta or Odinga who gets elected in two-months’ time, the independent Judiciary will probably find itself the target of an Executive branch used to getting its way
Kenya is not out of the woods yet. The passions and terror that have been on display over the last few months have not gone away. They continue to simmer away just below the surface. While the Supreme Court has reduced the risk of a violent explosion, it has not completely eliminated it. That can only be accomplished through honestly addressing the problems of our past and finishing the task of implementing the Constitution.
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