Exhortation to rise against second-rate democracy in Kenya

In a historic ruling last month, Kenya’s Supreme Court nullified the results of the August 8 presidential election. The election saw President Uhuru Kenyatta declared the winner over Opposition candidate Raila Odinga by the Independent Electoral and Boundaries Commission (IEBC), despite the Opposition's concerns of rigging.

Citing widespread “discrepancies that affected the integrity of the elections,” the Supreme Court ruled that the IEBC’s conduct during the voting process was unconstitutional and called for a repeat election within 60 days. But just last week, Raila announced that he would not participate in the October 26 vote.

The Opposition argues that few changes have been made to ensure that the election will be credible and notes Government efforts to clamp down on both dissent and institutional checks on its authority.

The country is in uncharted waters and what will happen now remains unclear. Some Kenyan analysts are interpreting an earlier Supreme Court decision to suggest that if a candidate withdraws from the run-off, a fresh election must take place with new nominations.

Stopping the run-off and moving toward a fresh election would certainly give everyone more time for a proper vote. This seems especially critical since the IEBC has done very little to date to implement substantial reforms that would address the Supreme Court’s concerns and, more generally, ensure electoral credibility.

Real issue

The real issue is that the Government appears to have no interest in a free and fair process. Kenya’s ruling elite has been modelling an increasingly sophisticated version of electoral authoritarianism over the last decade. For them, elections are merely a tool for maintaining power rather than presenting a real opportunity to transfer authority.

Unsurprisingly, their immediate response to the boycott and to mass protests has been to push through Parliament a law that awards automatic victory to a candidate if the other withdraws, to outlaw protests in the country’s major cities, and to threaten to arrest Opposition politicians organising protests.

There is only one path forward for Kenya and that is to implement a genuinely transparent and broadly legitimate election process, even if it requires abandoning the run-off clock.

This would be in keeping with the principles of the Supreme Court’s judgement and the Constitution - and it would ensure the right of all groups in Kenya to participate meaningfully in politics.

In pressing the Government to accept these conditions, the international community - especially the US, British and other European governments who hold significant economic, political, and military sway in the region - can play a decisive role.

Unfortunately, foreign officials have instead sent a series of mixed messages. First, government actors in the US, Britain, and elsewhere responded to the August elections by congratulating Uhuru despite allegations that the election had been stolen.

Then when the Supreme Court struck down the outcome, those same officials reversed course and hailed the decision as a win for democracy and the rule of law.

Although this was a positive development, the posture since the decision has been more problematic. In the face of Government intransigence and foot dragging by the IEBC to implement reforms, the US, Britain and the European Union responded by blaming both sides as equally culpable and by asserting that a run-off must take place no matter what.

Decisive moment

This is a decisive moment for Kenya and indeed for the future of democracy in other parts of Africa. The Supreme Court’s nullification last month embodied a sharp rebuttal of the prevailing authoritarianism and an assertion of the need for truly free and fair elections.

That decision also came on the heels of yet another autocratically managed election, this time in Angola—and the court’s judgment was widely understood to have reverberating consequences for ruling elites across the region.

This is why it is so critical that foreign governments and their envoys abandon any stance of false neutrality. If they want to be truly neutral, then they should aggressively oppose the improper use of State power, without the vacillating effort to blame everyone.

This is hardly a position of unequivocal support for Raila or the Opposition and is certainly not about “taking sides”.

It is a commitment simply to defend fair procedures, which in the long run benefit all, and to oppose the misuse of power, whoever is wielding that power. By contrast, the current American and European equivocation - as well as the status quo mindset that informs it - inherently entrenches governing regimes.

For all the talk of not intervening, these choices shape the terms of local disputes. They also play exactly into the expectations of autocrats. And if as on cue, those same rulers threaten the rule of law or shut down avenues for dissent, foreign officials, no matter their claims to neutrality, will nonetheless have played their role in sanctioning the new autocracy.

Mr Rana is Professor of Law at Cornell University