On August 15, the electoral commission announced that Deputy President William Ruto had won the 2022 presidential election following a close, tense race. The commission gave the count as 50.49 per cent for Ruto against rival Raila Odinga’s 48.85. This was immediately disputed by Raila’s campaign and four of the seven electoral commissioners, who described the final tallying process as “opaque”.
As he had done in 2013 and 2017, Raila petitioned the Supreme Court. He alleged several irregularities, including fraud, voter suppression and impunity by the commission’s chair, Wafula Chebukati. He claimed that Chebukati had breached the Constitution and acted unilaterally.
A unanimous judgment, read out by Chief Justice Martha Koome on September 5, rejected all these claims. Accordingly, Ruto will be officially sworn in this Tuesday, September 13, as the fifth president of Kenya, East Africa’s most stable democracy.
Casual observers may be tempted to regard Raila, taking the fifth shot at the presidency, as a sore loser. This is especially so given the Supreme Court’s dismissal of a key plank of his 2022 petition as “nothing more than hot air”. On the contrary, it is important to recognise the role that his legal petitions have played in helping improve, entrench and deepen democracy in the country.
Also, as indicated by the court judgment, Raila’s recent petition will most likely result in “far-reaching” reforms in the electoral commission. That would be good for the electoral system in particular and democracy in general in Kenya.
At the very least, Raila’s petitions have achieved important reforms and shifts in public attitudes. Kenyans now recognise the courts as the final arbiter of such conflicts. This is significant in a country where a post-election dispute in 2007 led to widespread violence in which more than 1,000 people were killed and hundreds of thousands internally displaced.
Raila has granted the Judiciary the opportunity to establish and enhance its independence. His petition to the Supreme Court after the 2017 disputed election alleged significant levels of fraud. It claimed that the IEBC had failed to electronically transmit the results as required by Kenyan law, in order to minimise fraud. The Supreme Court’s judgment emphasised that there were problems with transmission and verification of the results.
This contributed to the reforms that were made in preparation for 2022. Thanks to his 2013 petition and other cases related to this petition, for example, the court ruled that results at the polling station were final. This made it mandatory to post polling station results at each station for the public to view and to compare with the online portal run by IEBC. Compared with 2017, this made the election in 2022 more efficient and transparent.
During the 2022 election cycle, there was no Internet shut-down, there was no arrest of opposition leaders, and there was no hint that the incumbent, Uhuru Kenyatta, was opportunistically seeking ways to change the Constitution to stay in power indefinitely.
Despite the controversy over the results, the election was transparent, peaceful and credible. Voters conducted themselves with dignity. The results were transmitted in record time.
Finally, but no less important, these changes helped Raila’s supporters in particular and Kenyans in general appreciate the role that peaceful resolution of election conflicts can play in deepening democratic governance.
There are scarcely any losers in the conclusion to Kenya’s election. Kenya’s is a relatively young democracy with a Judiciary that is still struggling to build its capacity and enhance and safeguard its legitimacy. Its 2022 election court decision is a win for judicial independence and legitimacy in Kenya.
The opposition also won. Although disappointed by the court’s ruling, Raila accepted it and in doing so he reaffirmed his fidelity to the rule of law. Raila and his team have been known to argue that theirs is a struggle to bring transparency to the country’s electoral process and strengthen the democratic institutions. Though they did not capture enough votes to win, they succeeded in improving the electoral system and democracy. That should be considered a win for them.
Kenyans in general also won. The country is no stranger to post-election violence. However, since the adoption of a new Constitution in 2010 and the introduction of an independent Judiciary, post-election violence has been minimised.
Regular, fair, transparent, inclusive, and credible elections are an important element of a fully functioning and effective democratic system.
For elections to do this, however, they need finality. So a country needs a legal mechanism to peacefully resolve all election-related conflict to the satisfaction of all citizens.
The judiciary has proven itself capable of exercising independent judgement and bringing finality to elections.