Tricky legal questions around Kenya’s repeat poll

October 29, 2017 11:28 am
Kenya’s top justices could find themselves busy in the coming months with tricky legal issues raised by the country’s divisive election re-run © AFP/File / TONY KARUMBA

, Nairobi, Kenya, Oct 28 – Kenya’s repeated presidential election, held after an August 8 vote was annulled, has still not been completed after violence prevented voting Thursday in flashpoint opposition strongholds.

Some tricky legal questions remain:

– When will the result be announced? –

It is impossible to say at the moment.

The Independent Electoral and Boundaries Commission (IEBC) is still busy processing and verifying results and has not said when the final numbers will be announced.

The main problem is that voting did not take place in four of Kenya’s 47 counties, all of them in the west: Homa Bay, Kisumu, Migori and Siaya.

The region, a stronghold of opposition leader Raila Odinga, erupted in protest on election day after he called for a boycott of the poll.

Protesters blocked the opening of polling stations and clashed with police, with the insecurity keeping election staff away in fear of their lives.

More than 3,600 of the 40,883 polling stations did not open, the IEBC said.

In the latest of this election’s dramatic twists and turns, the IEBC first delayed the vote there until Saturday before postponing it again to an as yet unknown date.

Under Kenya’s electoral law, the commission can announce a result if it considers the overall result will not be affected by the outstanding votes.

However, some observers point to a constitutional provision that “an election shall be held in each constituency” — opening the IEBC up for further legal battles if voting does not take place.

– What does the law say about the delay? –

Election results must be announced within seven days of the election, that is, by midnight (2100 GMT) on Thursday November 2.

The Supreme Court decision overturning the results of the August 8 election ordered that the fresh poll be held by October 31.

That election, which President Uhuru Kenyatta won with 54 percent of votes to Odinga’s 44.7 percent, was annulled due to irregularities in the electronic transmission of results, in a first for Africa.

– Could the election face further legal battles –

It is very likely.

Questions over the credibility of an election boycotted by a large part of the population, and which was marred by low voter turnout is unlikely to hand Kenyatta a decisive mandate and may open the ballot up to further legal petitions.

One outstanding legal battle could also still throw a spanner in the works.

On the eve of the election, a last-ditch petition calling for the vote to be delayed made it to the Supreme Court. But the bench was unable to hear it for lack of a quorum, to the dismay of observers and Kenya’s foreign allies.

The opposition denounced the judicial hitch as “no coincidence” and Chief Justice David Maraga postponed the hearing to a later date.

His deputy was unable to attend as her bodyguard was shot and injured the night before, adding to a sense of insecurity around top officials and raising questions over whether the judges would rally for any future legal battles.

After Supreme Court’s bombshell ruling of September 1, Kenyatta slammed the judges as “crooks” and vowed to “fix” the judiciary if re-elected.



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