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2017 Election and Nullification

4 min read

On September 1, 2017, Kenya's Supreme Court made history by annulling a presidential election for the first time in Africa, invalidating Uhuru Kenyatta's victory over Raila Odinga in the August 8 election and ordering a fresh vote within 60 days. The decision shocked Kenya and the world. African presidents simply did not lose election petitions. Courts across the continent had a long record of upholding incumbent victories regardless of evidence. Yet Kenya's Supreme Court, led by Chief Justice David Maraga, ruled 4-2 that the Independent Electoral and Boundaries Commission (IEBC) had conducted the election in a manner "neither transparent nor verifiable" and that the declared result could not stand.

The August 8, 2017 election had seen Uhuru win 54.27 percent to Raila's 44.74 percent, a more comfortable margin than the narrow 2013 result. However, Raila's legal team, led by renowned lawyer James Orengo, filed a petition alleging that the IEBC's electronic results transmission system had been hacked to inflate Uhuru's vote totals. The petition pointed to discrepancies between paper forms at polling stations and electronically transmitted results, dead people allegedly voting, and statistical patterns suggesting manipulation. The case centered on whether Kenya's expensive election technology had been used to commit fraud rather than prevent it.

The Supreme Court's ruling was devastating for the IEBC and shocking for Uhuru. Chief Justice Maraga, reading the majority opinion, found that the IEBC had failed to conduct the election according to the constitution and the law. The court ruled that the commission had denied the petitioners access to its servers, preventing verification of the electronic results. It found that results forms were tampered with, that the IEBC's result transmission system was not secure, and that the commission had failed to follow its own procedures. Critically, the court stated that elections were not about the IEBC but about the people's will, and that will could only be determined through a credible, verifiable process.

The ruling used unprecedented language for an African court reviewing a presidential election. The majority judgment declared that the IEBC had committed "illegalities and irregularities" that affected the integrity of the election. It stated that "this is not a court of 'conform and move on'" and that the judiciary would not "bow to the spirit of democracy at the expense of the rule of law." The dissenting judges, Njoki Ndung'u and Jackton Ojwang, argued that the irregularities were not substantial enough to invalidate the result and that nullification would create a dangerous precedent. The 4-2 split revealed deep divisions within the court itself.

Uhuru's initial response was furious. In a press conference after the ruling, he called the judges "crooks" and warned that "we shall revisit this," language widely interpreted as a threat to judicial independence. However, he ultimately accepted the ruling and prepared for a fresh election, scheduled for October 26, 2017. The international community praised Kenya's judiciary for its independence. Observers noted that the ruling put Kenya's judicial system ahead of most established democracies in scrutinizing electoral processes. The decision was seen as a vindication of the 2010 constitutional reforms that had created a genuinely independent judiciary.

The nullification had profound consequences beyond the immediate electoral crisis. It established that Kenya's Supreme Court would not rubber-stamp presidential elections, setting a standard that reverberated across Africa. It demonstrated that the Kikuyu political establishment, despite its economic and political power, could not control all institutions. It forced a conversation about electoral technology and whether expensive systems improved or complicated electoral credibility. And it set the stage for the October 2017 repeat election, which would test whether judicial independence could survive political pressure.

See Also

Sources

  1. "Supreme Court of Kenya Judgment: Raila Odinga & 2 Others v. IEBC & 2 Others," Petition No. 1 of 2017, September 1, 2017. http://kenyalaw.org/caselaw/cases/view/140116/
  2. "Kenya Election 2017: Kenyatta Result Annulled by Supreme Court," BBC News, September 1, 2017. https://www.bbc.com/news/world-africa-41130410
  3. "Historic Ruling: Kenya's Supreme Court Annuls Presidential Election," The Guardian, September 1, 2017. https://www.theguardian.com/world/2017/sep/01/kenyas-presidential-election-results-annulled-by-supreme-court
  4. Lust, Ellen and David Waldner. "Unwelcome Change: Coming to Terms with Democratic Backsliding." Annual Review of Political Science, 2018.

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