Soon after the Independent Elections and Boundaries Commission (IEBC) declared Uhuru Kenyatta the winner of the presidential election on 8 April 2013, I was startled to see a call coming in from Gen. Michael Gichangi, the head of Kenya’s National Intelligence Service. I was in New York, having hurriedly left the country a month before the election because of death threats designed to keep me out of the campaign. Gichangi had been my nemesis during the 2007 election crisis, but once the Kibaki-Odinga Grand Coalition government was formed, we would occasionally have candid chats.
Anyway, Gen. Gichangi wanted to know how Raila would respond to the IEBC verdict. I assured him that Raila would do nothing which might lead to public protests. Oh, so he will accept the election result? Gichangi asked. I said no, he will not, he will appeal the verdict in the Supreme Court. There was silence for a moment before he said, “Even if going to the court could lead to protests and unrest? Are you sure you want that again?”
I was stunned. Raila was being asked by one of the most powerful officials in Kenya to forego his right to challenge the presidential election outcome in our Supreme Court that was newly created with the express mandate of determining presidential election disputes. That was done in part to provide breathing room and hope for redress for the losing candidate’s supporters while the three-week period that the court has to deliver judgement would diminish tensions. Indeed our universally hailed 2010 Constitution that created the court owed its promulgation to the violence that erupted immediately after the results of the bitterly disputed 2007 election were announced.
Gen. Gichangi’s suggestion that Raila desist from petitioning the Supreme Court was for me yet another indication of how far we as a country had fallen despite the new constitution, with the state openly flaunting its power by trying to prevent an electoral challenge.
Fast forward to a decade later—to 15 August 2022, when IEBC chairman Wafula Chebukati declared William Ruto the election winner and president-elect. Within a few hours I was doing a very interesting BBC interview until I was blown away by the presenter’s last question: Was it right for Odinga to challenge and therefore delay the final election result when Kenya was facing profound economic problems that needed urgent attention?
The question was startling, bizarre in fact, because it came not from a state operative but from the democratic world’s best known broadcaster that constantly pushes for greater democracy and for electoral integrity. Would the BBC discourage a lawful challenge by a losing candidate in a Western nation?
It was not lost on me that the British High Commissioner to Kenya, Jane Marriott, was perceived as being partial to Ruto, a claim she publicly rebutted after he was declared president-elect.
Interestingly, the United States has also been seen as being partial in this election. The US embassy twice put out an election-related travel advisory urging Americans to move about with caution. The first advisory, issued on 3 August, was criticized by Kisumu officials for mentioning only their city, the capital of Raila’s region, as being specifically dangerous. The implication was that Raila was expected to lose the election and that violence by his supporters might break out.
On Friday 2 September, a second US advisory went farther and imposed restrictions of movement on US government personnel in Kisumu ahead of Monday’s Supreme Court decision.
Separately, a US delegation led by Senator Chris Coons came to Nairobi and held talks with president-elect Ruto on security and anti-terror issues, even though it was known that Raila was to petition the Supreme Court and could potentially become president. Such signals from major powers at critical moments have significant impact as they can be read to indicate political preferences.
To come back to Gen. Gichangi’s 2013 suggestion, it seemed much more acceptable than the interventions of the UK and the US. Kenya’s intelligence and security services are the prime protectors of both national security and the continued rule of our entrenched political and economic establishment. This “establishment” has had an unbroken hold on our country for almost 60 years, ruling by hook or by crook—and through regularly rigged elections.
So it is no surprise that every single one of the four elections that followed our first—and only—fair election in 2002 has been deeply tainted by the actions of the electoral commission and other powerful actors. Such unlawful interference seems to have reached a new peak during the current election, judging by the submissions from Raila and other petitioners.
What has made the difference in the significantly increased revelations of illicit actions is that Raila, the long-time insurgent outsider, had joined forces with President Uhuru Kenyatta. Once seen as a poster child of extreme wealth and leader of the Kikuyu elite, Uhuru has adopted a reformist stance and was committed to neutralizing Kenya’s powerful election subverters (the “deep state”). He has also been preaching a strong multi-ethnic message of inclusion and, at political risk to himself, has repeatedly declared that presidents cannot continue to emanate from only two communities (his own and Ruto’s) for nearly 60 years, while at the same time expecting all Kenyans to feel that they are part of one nation.
So for the first time, the police service uncovered a number of rigging schemes, the most visible being their arrest of the three Venezuelan citizens who were in possession of IEBC election materials that they should not have been in possession of. Chairman Chebukati claimed that he had hired the three as IT specialists but could produce no evidence of such hiring. The police service also produced its own detailed forensic audit of the election tally that has helped identify problematic counts.
At the Supreme Court hearing of the petition, what stood out was Chief Justice Martha Koome’s skilful handling of the complex proceedings, comfortably asserting her authority and mastery of the law, as well as her decisive rulings. She also demonstrated collegiality and respect for the autonomy of the other Justices. I recall the difficulties she faced from what was a moderate vetting group who thought she rooted too much for women! How her mastery has grown—and now both top posts at the judiciary are held by women! This is among the many remarkable achievements Kenyans have been recognized for globally.
Raila had a strong petition, presented by his team of eminent and highly experienced lawyers who have long supported his democratic politics. Other petitioners’ lawyers added significant value to the case as well.
We have no idea if the Supreme Court will find the numerous allegedly unlawful actions to have decisively refuted Chebukati’s declaration of Ruto as president-elect. But the verdict that will be delivered on Monday will have a high degree of credibility. There is intense anticipation and excitement over the possibility that the Supreme Court ruling will be historic. We will know Monday.
The Supreme Court verdict does not, of course, automatically put an end to legal wrangles. In 2017, Raila’s petition led to the election being annulled by the court for “irregularities and illegalities”. It was a stunning verdict, the first ever in Africa. A re-run was ordered—but it was to be conducted by the same electoral commission that had committed the irregularities and illegalities!
Raila refused to run, and Uhuru Kenyatta and his deputy William Ruto were re-elected. The famed “Handshake” between Raila and the president took place the following year, in 2018, designed to overcome decades of political turbulence with a much more inclusive and collaborative model to unite the country. The last four years have seen a significant easing of historical political tensions, but there have been quite a few hitches too.
There is intense anticipation and excitement over the possibility that the Supreme Court will uphold Raila’s petition, which would be a huge boost for democracy and electoral participation.
So, if the justices accept the petitions, how will they propose to move forward? Clearly, Chebukati and his team cannot be entrusted with any responsibilities. Moreover, there is the question whether the 60-day constitutional limit within which the next election must take place can be amended through special constitutional measures.
Time has been a huge constraint in every petition. In 2013, a substantial chunk of Raila’s petition was disallowed by Willy Mutunga’s court for having been filed late. In many countries, there is a much longer lag between the election and assumption of office. In the US, it is over 75 days. In some countries it is four months. It is time to review the Supreme Court’s intense electoral experience over its decade-plus existence to see what lessons have been learned.
The rigging of four elections in a row is a shameful stain not just on the electoral machinery and the election officials but also for our nation and its many institutions. With election after election providing evidence of irregularities and illegalities at a minimum, faith in our democracy has been slowly dying. As observed, the turnout on 9 August was dramatically down, to about 65 per cent. It was 85 percent in 2013.
It is extremely ironic that the only fair presidential election ever held in independent Kenya took place in 2002 under the highly anti-democratic autocrat, President Daniel arap Moi. He had served his second and final term under the constitution but his anointed successor, Uhuru Kenyatta, lost to an unprecedented cross-national opposition— the National Rainbow Coalition (NARC) led jointly by Mwai Kibaki and Raila Odinga.
(There is a widely mistaken notion that the 1963 election was the first fair election held in independent Kenya; it was held in May of that year under colonial rule).
Electoral misdeeds are an extension of the rampant, massive corruption and theft that is literally killing Kenyans as the wealth of the country is siphoned off by the growing number of shilling billionaires. This is nothing less than the taking of food from the mouths of babes by those who have already made fortunes but show no sign of being sated!
With election after election rigged, faith in democracy was dying in Kenya. The turnout on 9 August was dramatically down, to 65 per cent at most, compared to 85 per cent in 2013.
This is grand corruption at its worst, very deeply entrenched and seemingly uncontrollable. Ironically, it is that vast pot of corruption gold that makes Kenya’s winner-take-all results of presidential and other polls so very desirable for those seeking riches and power. For some, even assassinations are part of their toolkit for success.
In the 2017 election, Chris Msando, the IEBC’s chief ICT officer responsible for ensuring the integrity of the election, was murdered just before the election. An incorruptible civil servant, he had assured Kenyans in a television interview that only he had the necessary electronic passwords and that the election would be fairly tallied. Photographs of his mutilated body were published, sending a clear message to those who might want to be brave.
Roselyn Akombe, an IEBC commissioner who was on sabbatical from the United Nations, resigned soon after and fled the country during the rerun of the presidential poll. Akombe had received many death threats and, alluding to Msando, said “You’d be suicidal to think that nothing will happen to you.”
In the current election, the Returning Officer for Nairobi’s Embakasi East Constituency, Daniel Musyoka, was whisked away after he briefly stepped out of his office; his body was found 150 miles away. The media has hardly probed into this awful killing by those who want to sway elections without having worked hard to win votes. If we did not enjoy close ties with the West, we would be pariah nation.
Assassinations of election officials occur because that tool has been used as a matter of course since right after independence. Elections are in fact a microcosm of all the horrors that afflict our nation. Kenya has had more political murders of potential future leaders—including renowned ones who were not part of the inner sanctum of power—than any other democratic country in the world. Fortunately there have been none in the last few years.
Kenya’s elections per capita are just about the most expensive in the world, costing a remarkable one third of a billion dollars each time. The electoral commission basically gets what it wants as Kenyans are willing to pay whatever it takes to have a secure, honest election. What they invariably get is the opposite.
The electoral commission engaged in rigging the last four elections. But the current one became much harder to pull off when Raila, the long-time insurgent, joined forces with President Uhuru Kenyatta.
From 2007 onwards, Raila Odinga has been the petitioner in all the four deeply tainted elections. He is indisputably the only presidential aspirant who has fought for real, pro-people change in the last 25 years, having earlier made major sacrifices including nine years as a political prisoner. But he rarely, if ever, speaks about any of the profound traumas that have been visited upon him and his family.
Like some credible independent analysts, I am convinced that Raila won the 2007, 2013 and 2017 elections. But not only has he kept going without a hint of bitterness, he has remained a larger-than-life figure, returning again and again to fight for a better Kenya.
And yet Raila is routinely referred to as the candidate who never accepts defeat. He has lost narrowly in the last four elections, and with regards to 2007 and 2017 (when the election results were annulled by the Supreme Court), there is consensus that he did not lose those elections. Did he lose the August 9 2022 polls? We will know Monday.
Because he is the only presidential candidate who fights for pro-people change and is immensely popular because of it, Raila is naturally the target of all the other major candidates, none of whom have reformist credentials. He is also the target of some foreign countries too.
The most vivid example of international anti-Raila animus came after the 2017 election, when former Secretary of State John Kerry, the senior-most US observer in Kenya representing the Carter Center, noted “Election day voting and counting processes had functioned smoothly with only isolated instances of procedural irregularities [which] did not appear to affect the integrity of those processes.” To make sure that his message was clear, Kerry publicly asked the “losing” candidate, Raila Odinga, to “move on”.
As we know, the Supreme Court annulled that election. Kerry was forced to publish an op-ed in the New York Times to camouflage his blunder. This episode again confirmed that foreign observers have no clue about whether an election has been free and fair. They mainly go by how voting day went, which in Kenya is invariably peacefully. But a peaceful election does not a fair election make. Africa needs to review the observer system from the ground up; and certainly, observers should specifically indicate what particular elements they looked at in their assessment.
The international media’s perception of Raila fails to reflect his commitment to reforms and change. To give a more current example than the interview mentioned above, a recent BBC article explored whether “results sheets were altered as Odinga claims?” “We’ve compared images of the original results sheets from these polling stations with those registered on the electoral commission website” it wrote. “In every case the results from the polling stations matched the official tallies published by the electoral commission.”
To have honest elections, it is not just the electoral machinery but Kenya itself that will have to change.
Given the BBC’s reputation and reach, people around the world will take this to mean that charges of fraud by the Raila team do not have a lot of credibility. But Prof. Walter Mebane, a renowned election expert at the University of Michigan, extensively studied this election’s results and found significant fraud, indicating however that the polling stations the BBC studied had revealed very low or no fraud.
The New York Times also shows a strong anti-Raila bias. Right after William Ruto was declared president-elect last month, the paper published a lengthy article portraying Raila as a leader who had lost even his hold on his ethnic base, quoting five of Raila’s kinsmen and Nic Cheeseman, a British scholar, to back its claims. The authors seemingly could not find a single voice with a differing perspective of Raila!
In a second article, the New York Times went harder at Raila. Prof Cheeseman now equated him to Donald Trump after the latter lost the 2020 election: “Misinformation, one side making wild accusations to excuse defeat, and a significant number of people who believe their candidate didn’t lose — it’s very Trumpian,” he said.
The article, titled In Kenyan Elections, the People Decide First. Then Come the Judges, asserted that “his legal team appear to have taken a kitchen sink approach, making a wide range of charges that, analysts say, range from the plausible to the outlandish.” The article goes on to mention “vicious personal attacks directed at the same electoral commission chairman who only recently was being praised for a polling process seen by many as a model for Africa, and beyond.”
I would like to mention that I have never heard anyone describe Chebukati in terms remotely approaching such hagiography. In 2017, it was he and his commission who were blamed by the Supreme Court for the “irregularities and illegalities” that led to the election’s annulment.
I think most readers will get the idea of what the New York Times thinks of Raila’s election petition. This is a man who at a minimum came close to winning the last four presidential elections. You would never realize that from reading any of these articles.
To avoid any misunderstanding, I should mention that I am not remotely implying that Raila cannot be criticized or his political weaknesses pointed out. I am a media person myself and I criticize people regularly. But unless I am writing about a recognized pariah, I avoid demonization and try to find a bit of balance.
We look forward to Monday’s decision by the Supreme Court on the petition filed by Raila. Whatever the decision, one can say that an awful lot of electoral re-thinking is urgently needed.
I can also say we will never have free and fair elections as long as corruption is not curbed, and addressing the extreme inequality and mass deprivation that are now part of Kenyan life becomes the nation’s most urgent priority.
A President Raila Amolo Odinga is what we need to get this clean-up process started. I very much hope the Supreme Court upholds his petition.
