North Carolina Journal of International Law

"Connecting North Carolina to the World of International Law"

A Comparison of Kenya’s Election Nullification and its Impact on East Africa

By: Joshua Bransford

 

 

 

 

 

 

Kenya’s recent election nullification is likely to positively impact Kenya and East Africa as a whole. Although there is a significant amount of political tension in the region, Kenya’s Supreme Court has set a model for other countries in East Africa. It has shown the legal integrity possible for African countries, and has provided a means to ensure future stability and economic growth in the region.

Kenya

Almost ten years after Kenya’s violent 2007 Presidential Election, the Kenyan Supreme Court annulled the results of this year’s Presidential Election.[1]  On September 1, 2017, Kenya’s Supreme Court handed down the ruling. [2] Kenya became the third country in recent years, including Austria and the Maldives, to nullify the results of a Presidential Election.[3]  This ruling comes three weeks after the August 8th election results, and directs the country to prepare for a new election in sixty days.[4]  It has resulted in much speculation over Kenya’s political and social unrest as well as its economy and the greater impact on East Africa.[5]

Over the last decade, Kenya has had significant political tension associated with Presidential Elections.[6]  In 2007, over 1,300 people were killed and more than 600,000 displaced following the violence that accompanied that year’s election.[7]  Because Kenya is comprised of many different tribes with political loyalties, much of the violence during 2007 was associated with tribalism.[8]  Witnesses reported that “gangs went house to house, dragging out people of certain tribes and clubbing them to death.”[9] In reference to this “violence”, a local mechanic stated, “It’s War. Tribal War.”[10]

Although the last two elections, including the August election, have been much less violent then the events following 2007, there has still been a significant amount of tension associated with corruption and poll tampering. In the weeks prior to the election in August, Christopher Chege Msando, a senior election official with the information technology division of the independent Electoral and Boundaries Commission, was found dead.[11]  He had been missing for three days, and according to a senior member of the government, “[t]here is no doubt that he was tortured and murdered.”[12]  This raised suspicion of poll tampering and violence leading up to the election.[13]  Yet, to the relief of many, the election proceeded relatively peacefully.[14]

However, this did not prevent the losing party from filing a complaint with the Kenyan Supreme Court. Referring to the election process, Deputy Chief Justice Philomena Mwilu said “the process was ‘like a matatu,’ referencing Kenya’s reckless, law-defying minibuses.”[15] This was after evidence was revealed indicating that “[a]bout 10,000 paper forms from polling stations, each containing the documentation of anywhere from dozens to hundreds of votes, were missing when the results were announced.”[16] Chief Justice David Maraga reacted, stating, “[t]he discrepancies were widespread . . . . [t]hese discrepancies affected the integrity of the elections.”[17]

Austria

Only one year earlier, Austria’s highest court also nullified the results of their Presidential Election in 2016. [18]  In Austria’s election, “[t]he Freedom Party candidate, Norbert Hofer, lost the election to the former leader of the Greens, Alexander Van der Bellen, by just 30,863 votes or less than one percentage point.”[19]  A complaint was filed with the Constitutional Court because the “Freedom Party argued that postal ballots were illegally handled in 94 out of 117 districts.”[20]

Austria has been relatively stable; however, Brexit has raised the tension between the different political factions.[21]  This caused the far right candidate, Norbert Hofer, to “based [his] election campaigns around concern over immigration and falling living standards for the less well-off.”[22]  Many projected that Hofer would win the election due to what has been called the “Trump Effect.”[23] Austria’s election along with other European election, including France, have been widely influenced by President Trump’s win and Brexit.[24]  These events have caused many to project the rise of conservative leadership in Europe.[25]

However, Austria’s far right candidate was defeated in the reelection following the previous nullification.[26]  This was consistent with the previous result in which Norbert Hofer was defeated and thus, appealed.[27]  This result was met with praise by many European leaders.[28]  “European Council President Donald Tusk conveyed ‘wholehearted congratulations’ while Germany’s Social Democrat Vice-Chancellor, Sigmar Gabriel, called the result ‘a clear victory for reason against right-wing populism.’”[29]

Maldives

On September 7, 2013, the Supreme Court of the Maldives annulled the results of their presidential election.[30]  This decision came during allegations of voter fraud and a contentious political system.[31]  The results of the election showed:

Mohamed Nasheed, who resigned as president of the Indian Ocean archipelago last year, won nearly 47 percent of the popular vote in Saturday’s election, while Yaameen Abdul Gayoom, the brother of 30-year autocratic ruler Maumoon Abdul Gayoom, trailed with 30 percent. A third candidate, businessman Qasim Ibrahim, had 23 percent.[32]

For the past decade the Maldives have had political unrest.[33] Mohammed Nasheed became President in 2008 in the first free election.[34]  However, he “was forced from office in an alleged coup.”[35]  Due to the political unease in the country at the time, “[s]ociety and even families have been divided along party lines, and institutions like the judiciary, public service, armed forces and police have worked in different directions and been accused of political bias.”[36] At the time, there was fear that the unrest would harm the tourism industry, “which contributed 27 percent to the gross domestic product” the previous year.[37]

Yet, when Yameen won in the second election, there was no protest from the opposing party.[38]  In a statement, the losing candidate “Nasheed, of the Maldivian Democratic Party (MDP), said: ‘I graciously accept defeat. We lost by a very small margin. Democracy is a process. It is up to us to make it work.’”[39]

How does Kenya Compare?

Kenya differs from Austria in almost every way. Austria experienced the Trump Effect, which swept many of the European nations after the results of the United States Election.[40]  Many of the voters in Austria were concerned with immigration, jobs, and Austria’s standing in the EU.[41] Furthermore, Austria has been a relatively stable country with comparably little unrest associated with its Presidential Elections.[42] Conversely, Kenya has been plagued with violence associated with Presidential Elections for the past decade.[43]  Moreover, unlike Austria, Kenya is split along tribal lines.[44]  Thus, Kenyan voters are concerned with which tribal leader is in power as opposed to immigration.[45]  Austria may be a reference in projecting that the winner of the original election will be the winner in the second; however, beyond this, Austria likely offers little in projecting Kenya’s political and sociological future.

The comparison between the Maldives and Kenya is much more compelling. Both countries have experienced political unrest over the past decade, and both countries are heavily dependent on tourism. Kenya is a relatively new country receiving independence in the last century, as is the Maldives.[46]  Furthermore, the unrest amongst the two counties is not based on the Trump Effect or the EU, but is based on tribal or sociological issues that come with the new State hood.[47]

Thus, a projection based off the model set by the Maldives would indicate that the immediate impact of a new election and the results associated with it would be relatively peaceful. This model also contradicts the election results of Austria, predicting a defeat for the previous election’s victor. Thus, because there are so few Presidential Election nullifications, at this stage in history there does not seem to be enough information to predict a winner.

How does Kenya’s nullification effect East Africa?

The nullification will have a positive effect on East Africa’s future. According to George Tubei, a reporter in the Business Insider’s Sub Sahara Africa branch, “Kenya’s presidential verdict is likely to have a spiral effect across the continent and inspire other courts to follow suit whenever they feel elections were not free and fair.”[48]  According to the New York Times, “[t]he ruling offered a potent display of judicial independence on a continent where courts often come under intense pressure from political leaders.”[49]

Conversely, East Africa’s economy may initially suffer as a result.[50] Kenyan elections normally cost roughly $1 billion.[51] According to Emma Gordon, senior East Africa analyst at risk consultancy Verisk Maplecroft,

“Investors will be concerned about the financial implications and the high risk of violence. With the possibility of the new election going to a second round and the result being contested again, political uncertainty could easily last the rest of the year,” she said in a research note.[52]

Furthermore, Kenya has the largest economy in East Africa with a large percentage of its GDP coming from tourism.[53] So any slip in tourism due to safety concerns would have a significant effect on the region’s economy.

However, after taking all these aspects into consideration, the nullification is likely to have a limited downside with a much greater upside. Kenya’s economy and its impact on East Africa may be hurt in the short run, but in the long run the benefits are likely to outweigh any losses. As a leader in the region, Kenya has illustrated the judicial independence that is possible in Africa. Even if there is violence accompanying the new election, Kenya has already shown that an African court can follow the law, regardless of the political pressure. Following the more accurate Maldives model, this is a very realistic possibility. Furthermore, this illustrates a high level of political integrity that will likely stabilize East Africa in the future and lead to a stronger economy and political climate.

 

[1] George Tubei, Kenya just became the third country in the world to nullify a presidential election result, Business Insider, Sept. 1, 2017, http://www.businessinsider.com/kenya-nullifies-presidential-election-results-2017-9 [https://perma.cc/9ACD-FRWU].

[2] Id.

[3] Id.

[4] Id.

[5] See Ivana Kottasová, Kenya election shocker sparks fears over economy, CNN, Sept. 1, 2017, http://money.cnn.com/2017/09/01/news/economy/kenya-election-economy/index.html [http://perma.cc/TL6S-DUYJ].

[6]  See Kimiko De Freytas-Tamura, Kenya Supreme Court Nullifies Presidential Election, N.Y. Times, Sept. 1, 2017, https://www.nytimes.com/2017/09/01/world/africa/kenya-election-kenyatta-odinga.html [http://perma.cc/V2FF-7CSV].

[7] Id.

[8]  See Jeffrey Gettleman, Disputed Vote Plunges Kenya into Bloodshed, N.Y. Times, Dec. 31, 2007, http://www.nytimes.com/2007/12/31/world/africa/31kenya.html [https://perma.cc/NN9Q-PEUN].

[9] Id.

[10] Id.

[11] Kimiko De Freytas-Tamura, Kenya Election Official Is Killed on Eve of Vote, N.Y. Times, July 31, 2017, https://www.nytimes.com/2017/07/31/world/africa/chris-musando-kenya-election-official-dead.html?rref=collection%2Fbyline%2Fkimiko-de-freytas-tamura&action=click&contentCollection=undefined&region=stream&module=stream_unit&version=latest&contentPlacement=2&pgtype=collection [http://perma.cc/KA6M-XWA7].

[12] Id.

[13]Id.

[14] Kimiko De Freytas-Tamura, Kenyan Presidential Election Is Peaceful; Violence Feared over Results, N.Y. Times, Aug. 8, 2017, https://www.nytimes.com/2017/09/01/world/africa/kenya-election-kenyatta-odinga.html [http://perma.cc/V2FF-7CSV].

[15] Kevin Sieff, Kenya’s Supreme Court: Here’s why we annulled the results of the presidential election. It was a mess., Wash. POST, Sept. 20, 2017, https://www.washingtonpost.com/world/kenyas-supreme-court-heres-why-we-annulled-the-results-of-the-presidential-election-it-was-a-mess/2017/09/20/c22066cf-7fcf-4bc8-8655-33657c584afa_story.html?utm_term=.de7d900fa634 [https://perma.cc/VW79-DVDY].

[16] Id.

[17] Id.

[18] Austria Presidential Poll Result Overturned, BBC, July 1, 2016, http://www.bbc.com/news/world-europe-36681475 [http://perma.cc/37W7-V7NR].

[19] Id.

[20]  Id.

[21] Id.

[22] Id.

[23] Trump effect unknown in tight Austrian presidential Election, FOXNEWS, Nov. 30, 2016, http://www.foxnews.com/world/2016/11/30/trump-effect-unknown-in-tight-austrian-presidential-election.html [http://perma.cc/MWJ8-LYT7].

[24] Id.

[25] Id.

[26] Austria Far-Right Candidate Norbert Hofer Defeated in Presidential Poll, surpa note 18.

[27] Austria Far-Right Candidate Norbert Hofer Defeated in Presidential Poll, surpa note 18.

[28] Austria Far-Right Candidate Norbert Hofer Defeated in Presidential Poll, BBC, Dec. 5, 2016, http://www.bbc.com/news/world-europe-38202669 [https://perma.cc/8YRD-ZJLV].

[29] Id.

[30] Maldives Court Annuls Presidential Election Result, BBC, Oct. 7, 2013, http://www.bbc.com/news/world-asia-24436773 [http://perma.cc/E8GD-599F].

[31] See id.

[32] Maldives Presidential Election Leads to Runoff, but Court Postpones it to Nov. 16, FOXNEWS, Nov. 10, 2013, http://www.foxnews.com/world/2013/11/10/maldives-presidential-election-leads-to-runoff-but-court-postpones-it-to-nov-16.html [http://perma.cc/CY8W-SMM4].

[33] Maldives Court Annuls Presidential Election Result, BBC, Oct. 7, 2013, http://www.bbc.com/news/world-asia-24436773 [http://perma.cc/E8GD-599F].

[34] Id.

[35] Id.

[36] Maldives Presidential Election Leads to Runoff, surpa note 33.

[37] Id.

[38]Maldives Election: Abdulla Yameen Wins Run-off Vote, BBC Nov. 16, 2013, http://www.bbc.com/news/world-asia-24974019 [https://perma.cc/H2B2-LZVP].

[39] Id.

[40]See Trump effect unknown in tight Austrian presidential Election, surpa note 24.

[41] See id.

[42] Megan Trimble, The 10 Most Peaceful Countries in the World, U.S. News, June 1, 2017, https://www.usnews.com/news/best-countries/articles/2017-06-01/the-10-most-peaceful-countries [https://perma.cc/ZUE9-74SC].

[43] See De Freytas-Tamura surpa note 6.; See De Freytas-Tamura surpa note 11.

[44] See Jeffrey Gettleman surpa note 8.

[45] See id.

[46] Simran Khosla, This map shows all the countries that have declared independence from the British, GlobalPost, September 15, 2014, https://www.pri.org/stories/2014-09-15/map-shows-all-countries-have-declared-independence-british [https://perma.cc/AHP7-FRDY].

[47] See Jeffrey Gettleman surpa note 8.; See Maldives Presidential Election Leads to Runoff, surpa note 33.

[48] George Tubei, Kenya just became the third country in the world to nullif a presidential election result, Business Insider, Sept. 1, 2017, http://www.businessinsider.com/kenya-nullifies-presidential-election-results-2017-9 [https://perma.cc/9ACD-FRWU].

[49] Kimiko De Freytas-Tamura, Kenya Supreme Court Nullifies Presidential Election, N.Y. Times, Sept. 1, 2017, https://www.nytimes.com/2017/09/01/world/africa/kenya-election-kenyatta-odinga.html [http://perma.cc/V2FF-7CSV].

[50] Id.

[51] Id.

[52] Luke Graham, Kenya Stocks Plummet as Supreme Court Rules Presidential Election Was Invalid, CNBC, Sept. 1, 2017, https://www.cnbc.com/2017/09/01/kenya-election-supreme-court-overturns-president-uhuru-kenyatta-win.html [https://perma.cc/98LP-4XBL].

[53] Ivana Kottasová, Kenya election shocker sparks fears over economy, CNN, Sept. 1, 2017, http://money.cnn.com/2017/09/01/news/economy/kenya-election-economy/index.html [http://perma.cc/TL6S-DUYJ].

 

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