Kenyan Supreme Court: Election Fraud Stops Now

By: Max Mittleman.

Concerns over election fraud and hacking has become a world-wide concern. Most recently, the Kenyan election was annulled due to “irregularities and illegalities.”[1] Kenya joins many other countries left questioning the authenticity of election results. In the United States, individuals from both the left and right believe that election fraud may have taken place, despite a lack of evidence to support the claims.[2] Further, investigations into voter fraud in the United States often lead to “simple mistakes by election officials” or pure myth all together.[3] Although vote security in the United States has shown to be strong, the Supreme Court ruling in Kenya shows that democracy across the world may not be as strong.[4]

History of Kenyan Elections

Prior to its independence, Kenya was a British colony.[5] In 1920, the first elections under colonial rule took place.[6] Major-General Sir Edward Northey won the election and became the first governor of the British colony.[7] In 1961, the first country-wide voting took place and the Kenya African National Union (KANU) was victorious.[8] In this election KANU won 24 of the 65 elected seats in the Kenyan Legislative Council; however, Kenya was still under colonial control.[9]

On December 12, 1963, Kenya became an independent nation.[10] Jomo Kenyatta of the KANU, who had been prime minister, was elected the country’s first president.[11] Following independence, a dispute broke out between the Kenyan president and vice president.[12] This dispute led to Jaramogi Oginga Odinga, the former vice president, leaving KANU and forming the rival political party Kenya People’s Union (KPU).[13] Ethnic divisions between the two parties led to strong disputes and eventually in 1967, the KPU was able to stand for elections.[14]

The divides formed during this period led to Kenya’s first post-colonialism one-party state era.[15] The KPU ended up winning the “majority of votes but KANU won majority of seats.”[16] As a result, Kenya formed into a one-party state in 1969 and the KPU was banned from the ballots.[17] One party politics continued in Kenya through the 1988 elections.[18] However, in 1992 President Moi, who had continued Jomo Kenyatta’s presidency after Kenyatta died, restored multi-party politics in Kenya.[19] Daniel Moi continued as Kenya’s president until 2002 when Kenya “had arguably the most credible election it has ever held.”[20] Mwai Kibaki won the election with 61.3% of the vote over Uruhu Kenyatta (son of Jomo Kenyatta).[21]

The 2007 Kenyan Crisis

The calm after the 2002 Kenyan election did not last long. In 2007, Kenya erupted into crisis after Mwai Kibaki was declared the winner of the presidential election.[22] After the election, over 1,300 people were killed and more than 600,000 displaced as a result of the violence that occurred.[23] The violence and unrest led to the targeting of ethnic groups who were seen as belonging to one side or the other.[24] In 2011 the International Criminal Court indicted Uhuru Kenyatta, who had supported Kibaki, for his part in inciting ethnic violence against supporters of Odinga, Kibaki’s opponent.[25] Charges were eventually dropped in 2014.[26]

Although charges against Kenyatta were dropped, concerns over the 2007 Kenyan election did not stop.[27] Issues with the election ran so deep that “it has been and will remain impossible to establish true results.”[28] An Independent Review Commission (IREC) concluded that corruption on both sides was prevalent.[29] Vote-buying and selling, ballot stuffing, and public intimidation by gangs have all been seen as contributing factors.[30] Additionally, 1.2 million dead people were believed to still be registered voters, showing how out of date Kenya’s voting records were.[31]

The 2013 Election

After such turmoil in 2007, Kenya needed a clean election in 2013; however, complications continued. With 50.07% of the vote, Uhuru Kenyatta won the presidential election over Ralia Odinga.[32] At first, the general population accepted the results.[33] Although there were initially no problems, Odinga filed a petition challenging the results. Some believed this petition was simply Odinga refusing to accept defeat, but it became clear that the scars of 2007 left many people weary of the election system in Kenya.[34] Odinga’s petition did not simply claim that he was the rightful victor, it claimed that the process was so “marred with enough irregularities to bring the result into question.”[35] Upon investigation, the Supreme Court dismissed the majority of the petition’s evidence and even though polling samples “show[ed] clear discrepancies to the advantage of Uhuru Kenyatta,” the court held that the results would stand.[36]

The Current State of Kenyan Politics

On August 8, 2017, the people of Kenya went to the voting booths.[37] The winner after the votes were tallied was, again, Uhuru Kenyatta.[38] Once again, the vote was “marred by ‘irregularities and illegalities.”[39] However, this time the result was different: The Supreme Court of Kenya, for the first time in history, nullified the election.[40]

For the third time, Ralia Odinga petitioned the results of the presidential election.[41] His claim was that “systematic fraud had denied him victory,” and while some in the West believed he was simply complaining, the Supreme Court accepted his arguments.[42] While the Court did not implicate Kenyatta or his team personally, it blamed the electoral commission “for the opaque manner in which it conducted the account.”[43] It is believed that the lack of “adequate supporting documentation” of the results led to the Court siding with Mr. Odinga and vacating the election results.[44] Additionally, Mr. Odinga claims that the election commission servers had been hacked and ten points were given to Mr. Kenyatta.[45] In response to these hacking allegations the chairman of the commission claims that “hackers tried, but failed to break into the servers.”[46]

This ruling has two visible effects, one immediate and one long-term. First, there will be another election held within 60 days of the original election that took place on August 8.[47] Second, and potentially more importantly, this ruling provides hope for the future.[48] While the Supreme Court of Kenya has “bolstered its independence in recent years” many citizens still feel that it is under government influence.[49]

Conclusion

This ruling, which goes against historic rulings and the controlling party, is the first step in ensuring the citizens of Kenya that democracy is taken seriously and their vote counts. Justice Maraga, the new chief justice who was not well known, may now be the face of the Kenyan people in their stand against corruption within the ruling elite.[50]

It will be interesting to see the results of the new vote; however, going forward it appears that Kenyan democracy has been given a new jolt of energy which may provide for future election legitimacy. From a country tormented by corrupt elections, we may be seeing the birth of a new age.

[1] Adrian Bloomfield, Kenyan Court Overturns Presidential Election After Ruling it was Marred by ‘Illegalities,’ The Telegraph (Sept. 1, 2017), http://www.telegraph.co.uk/news/2017/09/01/kenyan-judge-orders-re-run-presidential-election-due-irregularities/.

[2] Lorraine C. Minnite, The Misleading Myth of Voter Fraud in American Elections, Scholars Strategy Network (Jan. 2014), http://www.scholarsstrategynetwork.org/brief/misleading-myth-voter-fraud-american-elections.

[3] Id.

[4] Jason Burke, Kenyan Supreme Court Annuls Uhuru Kenyatta Election Victory, The Guardian (Sept. 1, 2017), https://www.theguardian.com/world/2017/sep/01/kenyan-supreme-court-annuls-uhuru-kenyatta-election-victory.

[5] Ismail Akwei, A Look at Kenya’s Elections History Since Independence in 1964, Africa News (Mar. 2008), http://www.africanews.com/2017/08/06/a-look-at-kenya-s-elections-history-since-independence-in-1964//.

[6] Id.

[7] British Kenya (1920-1963), University of Central Arkansas, http://uca.edu/politicalscience/dadm-project/sub-saharan-africa-region/british-kenya-1920-1963/.

[8] Akwei supra note 5.

[9] British Kenya supra note 7.

[10] Id.

[11] Id.

[12] Akwei supra note 5.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Kingsley Ndiewo, The Unique Elections History for Kenya, U Report (June 18, 2017), https://www.standardmedia.co.ke/ureport/article/2001243987/the-unique-elections-history-for-kenya.

[21] Id.

[22] James Brownsell, Kenya: What Went Wrong in 2007?, AlJazeera (Mar. 3, 2013), http://www.aljazeera.com/indepth/features/2013/03/201333123153703492.html.

[23] Akwei supra note 5.

[24] Kenya Rivals Agree to Share Power, BBC News (Feb. 28, 2008), http://news.bbc.co.uk/1/hi/world/africa/7268903.stm.

[25] Akwei supra note 5.

[26] Id.

[27] Wangui Kanina, Kenya’s Election Seen as Badly Flawed, Reuters (September 18, 2008), http://uk.reuters.com/article/uk-kenya-election/kenyas-election-seen-as-badly-flawed-idUKLI38786120080918.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Ndiewo supra note 20.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Bloomfield supra note 1.

[38] Kimko de Freytas-Tamura, Kenya Supreme Court Nullifies Presidential Election, NY Times (Sept 1, 2017), https://www.nytimes.com/2017/09/01/world/africa/kenya-election-kenyatta-odinga.html.

[39] Bloomfield supra note 1.

[40] Id.

[41] Id.

[42] Id.

[43] Id.

[44] Id.

[45] Kimiko de Freytas-Tamura, Kenya Opposition Leader Says He’ll Expose Election Fraud, NY Times (Aug. 16, 2017), https://www.nytimes.com/2017/08/16/world/africa/kenya-opposition-leader-says-hell-expose-fraud-for-all-to-see.html?rref=collection%2Fbyline%2Fkimiko-de-freytas-tamura&action=click&contentCollection=undefined&region=stream&module=stream_unit&version=latest&contentPlacement=4&pgtype=collection.

[46] Id.

[47] Freytas-Tamura supra note 38.

[48] Id.

[49] Id.

[50] Bloomfield supra note 1.