If the peaceful conduct of Kenya’s recent presidential elections was any kind of test of the development of the country’s new democratic culture, what happened in its aftermath bears even greater testimony to the fact that the culture of rule of law, democracy and constitutionalism may finally be taking root in Kenya as a nation and Kenyans as a people. After Kenya’s election body – the Independent Electoral and Boundaries Commission (IEBC) of Kenya – declared Uhuru Kenyatta, son of Kenya’s first President, the winner of the March 4 presidential elections by a slim margin (50.07%), his main rival, Raila Odinga, seized the Supreme Court, contesting the results. Considering promises by all sides during the campaigns to respect the outcome of the process, Odinga’s unexpected volte face not only froze the electoral process; it also upped anxieties and fears – as people were reminded of the violent experience of the 2007 elections – on what this might mean in the event of a ruling confirming, or voiding, the IEBC results.
However, the Supreme Court’s confirmation of Kenyatta’s victory on March 30, and Odinga’s peaceful acceptance of the same calls for a reflection of not only how this outcome came about, but also its implications for Kenyan democracy, including the role of the judiciary in the country’s democratisation process. So, why did the same parties, who seven years earlier chose violence, seek a judicial forum to resolve electoral squabbles seven years later? In what ways does the current ruling strengthen the judiciary’s role as a vehicle of democratisation?
External observers may point to the looming threat of criminal prosecutions against some of the candidates by the Hague-based International Criminal Court (ICC), in connection with elections-related violence in 2007, and conclude that there is now a higher deterrent factor for instigating such violence. There is no doubt some truth to this. However, it glosses over some of the experiences and tribulations of Kenyans, as a people, in their own historical search for democracy, constitutional governance and the rule of law.
Kenya’s 2013 election was probably the most democratic in the nation’s history in terms of turn out, the manner in which it was conducted and the choices that were made. It was the culmination of decades of costly – and often bloody – struggles, for a political and constitutional framework that would facilitate a transition to a more democratic ethos, after gaining independence from Great Britain. This episode peaked in the mid-2000s but then took a downward spiral when the Government hijacked the Constitution review process at the time. Kenyans voted down the proposed constitution following a campaign which polarized the country to extremes not seen before. Two years later, over 1200 persons were killed and 600,000 displaced in elections-related violence, resulting in a carefully managed and closely-watched reconciliation and transition process that finally established a democratic constitution in 2010.