Kenya: Presidential election likely to go ahead as scheduled despite opposition demands, rejection of poll date

September 2017

The Independent Electoral and Boundaries Commission (IEBC) on 4 September announced that a new presidential poll will be held on 17 October following the annulment of the results of the 8 August poll by the Supreme Court on 1 September. Leader of the opposition National Super Alliance (NASA) coalition Raila Odinga has rejected the date, saying that he favours either 24 or 31 October. NASA has also issued a list of demands to the IEBC to ensure the new election will be credible. According to the constitution, the election must be held within 60 days of the annulment of the results.

  • The rejection of the poll date underscores NASA’s continued campaign against the IEBC. NASA has already termed the IEBC ‘unfit for purpose’ and called on its commissioners to resign. The latest demands build on a year-long effort by NASA to discredit the IEBC, which saw it file several court appeals during the campaign period. Allegations of IEBC bias and incompetence are likely to remain a key opposition campaign theme in the coming weeks.
  • The election is likely to go ahead as scheduled, though minor delays are possible. The Supreme Court is unlikely to recommend an extension in its pending written judgment on NASA’s election petition, and the ruling Jubilee Party of Kenya (JPK) has confirmed that it is ready for the 17 October date. Nonetheless, the IEBC could decide on a delay of a week or two to placate Odinga in place of more significant concessions. 
  • Odinga is highly unlikely to boycott the polls. Some of the opposition’s demands are likely to be met, such as the gazetting of polling stations and returning officers. However, others are unlikely to be feasible, such as an audit of election-related tenders and full access for NASA agents to the IEBC servers. Nonetheless, we expect Odinga to stand, given his belief that he has a credible chance of victory.    
  • We expect President Uhuru Kenyatta to be re-elected in light of his party’s stronger financial position and more organised campaign. NASA supporters now have heightened expectations of an Odinga victory, and a second defeat would be likely to prompt protests and clashes in opposition strongholds in the capital Nairobi, and western and coastal regions. Opposition supporters would be likely to allege rigging and respond to calls for mass action by NASA leaders.

Differing interpretations

The Supreme Court’s full written judgment, which is due within 21 days of the ruling, is expected to clear up a number of areas of confusion. For example, the IEBC has interpreted the constitutional requirement for ‘fresh elections’ as necessitating a contest between only the two frontrunners, Odinga and Kenyatta. This is in keeping with a Supreme Court statement from 2013 that clarified that the constitution’s wording of ‘fresh elections’ meant a run-off between the two candidates with most votes. Nonetheless, NASA has rejected this interpretation and called for all candidates in the original petition to appear on the new ballot. 

Meanwhile, the IEBC on 5 September announced personnel changes for the new poll, including the appointment of Marjan Huseein as project coordinator instead of CEO Ezra Chiloba, who oversaw the 8 August poll. Nonetheless, the electoral commission has said that it cannot institute major reforms until the Supreme Court issues its full judgment, as it did not identify the main areas for improvement in its brief statement on 1 September.

NASA demands

In a statement to the press, the opposition has called on the IEBC to ensure full compliance with the constitution, election laws and the Supreme Court ruling. NASA’s demands include:

  • The resignation of IEBC commissioners suspected of bias, despite acknowledging that Kenyatta’s limited powers during the interim period would prevent the appointment of new commissioners.
  • A full audit of the voter register and the IEBC’s technology infrastructure, including a physical inspection of the server locations. 
  • The selection of a new company to print ballot papers, having previously alleged that the current firm is allied with the JPK. 
  • The publication of a list of all polling stations and their returning officers, having alleged that results were relayed from non-existent polling stations following the 8 August poll. 
  • Clear stipulation of the roles of security forces and the local government administration to reduce the risk of intimidation or political influence.

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