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Kenya mired in political tension

November 21, 2017

Kenya's top court has cleared the way for President Kenyatta to serve a second term. But low voter turnout and threats against the judges have left critics doubtful that his claim to the presidency is legitimate.

A man holds up a rock and a stick in front of a crowd of protesters
Image: Getty Images/AFP/Y. Chiba

Amid a wave of violent protests and legal battles, Kenyans have faced political chaos for four months since they first voted in presidential elections on August 8. These elections were won by the incumbent, Uhuru Kenyatta, with 54 percent of the vote.

The country's Supreme Court annulled these elections because of procedural irregularities, ordering new ones to be held in October. That ruling was seen as a historical example of the independence of Kenya’s judiciary.  

Yet on Monday, the very same Supreme Court voted to uphold the results of the rerun election. They dismissed two petitions arguing that the October vote had lacked transparency and that it wasn't held in each of Kenya's 291 constituencies. In some opposition strongholds, people couldn't vote due to unrest. 

Read more: Kenya election confusion deepens as parliament passes controversial amendment

The court's latest ruling clears the path for Kenyatta to be sworn in for a second five-year term. At the same time, it raises doubts about the court's independence and the election's legitimacy. 
'Extreme intimidation' of the court

"I don't think the environment was really conducive for the Supreme Court to make a genuinely independent determination," said Peter Alingo, a Senior Researcher with the Institute of Security Studies, from Nairobi. 

Six judges in red robes stand at court
President Kenyatta called the judges "wakora," which means crooks in SwahiliImage: Reuters/B. Ratner

After it annulled the August elections, Kenya's chief justice, David Maraga, spoke of threats against the Supreme Court. President Kenyatta, for instance, called Maraga and his fellow judges "crooks," and threatened to "fix" the Supreme Court if re-elected. 

"Senior political leaders have also threatened the judiciary promising to cut it to size and teach us a lesson," Justice Maraga said. 

In October, the bodyguard of Kenya’s deputy chief justice was shot and seriously injured by unknown assailants. 

A day after the shooting, only two out of seven Supreme Court judges turned out to vote on whether to delay the October presidential rerun - three short of the number needed for a quorum. It's still not clear why the judges failed to show up but it's assumed that fears of violence caused them to stay away. 

"The Supreme Court would have been under extreme pressure and extreme intimidation," Alingo told DW in a telephone interview. 

With legal challenges now having run their course, Kenyatta's inauguration is set for November 28. 

'A major conflict' between Kenya's main tribes

Of the 39 percent of voters who took part in the rerun, 98 percent voted for Kenyatta. The extremely low voter turnout for the October election resulted from a  boycott by opposition supporters  after opposition leader Raila Odinga pulled out. He argued that the electoral commission still couldn't guarantee fair polls.

Peter Alingo is concerned about those who decided not to vote. "We are talking about someone who will rule the whole country, not rule for the benefit for half or a quarter of the country, but for all of the country."

Voting in Kenya tends to be a tribal affair

"Elections in Kenya are not a civil political competition; they are an all-out contest for power and resources, often between political parties and groups organized by ethnicity," wrote Kenyan human rights lawyer Maina Kiai in a recent New York Times opinion piece. 

Most of Odinga's supporters come, like him, from the Luo tribe. The Luo already had a deep rooted sense of grievance and marginalization because no Luo has ever won an election. Since independence from Britain in 1963, presidents have come from only two tribes – the Kalenjin and the Kenyatta's Kikuyu tribe, the country's biggest ethnic group. 

"We are seeing a major conflict between the main tribes in Kenya," said Jan Cernicky, from the Konrad Adenauer Stiftung, a German political foundation. 

Kenyatta will need to unite a divided nation

Portrait photo of Kenyatta
Kenyatta belongs to Kenya's biggest tribe, the KikuyuImage: Reuters/T. Mukoya

Speaking from the capital Nairobi, Cernicky said it was important for Kenyatta and his new government to continue to hand over power to the country's 47 counties, which would allow Kenya's 42 tribes to have more say at regional level. 

This process, known as devolution, started after Kenya's last elections in 2013. As well as giving power to the counties, it also, in part, wrests some power away from the Kikuyu, who many perceive as benefiting from their greater numbers. 

"This would mean not just having all the power in the one person who won the presidency but share it among many parts of Kenya," said Cernicky. 

But in Kenya, powersharing is easier said than done. Scores of people have been killed in clashes between police and protesters since the initial presidential election in August. And the Supreme Court's latest announcement triggered protests that left two dead. 

With Kenya's opposition coalition, which is led by Odinga, saying they don't recognize Kenyatta as the new president, the political tension isn't letting up any time soon. 

"We are all worried about how this will unfold," said Peter Alingo. "We keep guessing. 'What is the next step the president elect will take?' 'What is the next step that the opposition will take?' So all this still creates a cloud of uncertainty and tension and we do not know when it will be resolved and how."

Kate Hairsine Australian-born journalist and senior editor who mainly focuses on Africa.