By Dr Tom Odhiambo
As Kenya emerges from another hotly contested general election, in a manner of speaking, media commentators are wont to claim that the country is split right in the middle. They will write in acres of newsprint and go on and on endlessly on radio and television that Kenyans who voted were shared equally between the competing political groups. They will, of course, conveniently forget that another third of Kenyans – were we to believe the Independent Electoral and Boundaries Commission (IEBC) – either did not bother to go and vote or were somehow ‘repressed’ so as not to vote.
Kenyans on the winning side will celebrate their victory. Kenyans on the losing side will agonize over the loss. Yet the real issues that lead to the so-called hotly contested elections won’t go away. The question of winner-takes-all after an election won’t go away. The question of vote manipulation won’t go away. The question of incompetence by those responsible for the elections won’t go away. The question of the cost of contesting for a seat and also holding the elections won’t go away. These questions, and many more that people have asked about the nature of Kenyan elections, will not be answered soon, simply because the opaqueness – to use a very current phrase – of the process serves the interests of many people involved in the electoral process.
There are just too many questions around elections in Kenya. For instance, why do so many Kenyans throw their lot into an election only to complain after losing that they were ‘rigged out’ during party nominations or the election itself? Why do political parties – which though private entities, are expected to behave democratically – often select candidates for office instead of allowing their members to participate in the electoral process? How did we end up with a situation where competing parties are likely to end up at the Supreme Court of Kenya and not have a conclusive election with an acceptable winner?
Former Chief Justice, Willy Mutunga, speaks to some of these questions in a number of essays, including “Justice in Political Contests,” “Oaths Betrayed,” “Addressing the Trouble with Elections,” “Africa’s Electoral Conditions: Judiciary as a Political Actor.” These essays are published in a collection dedicated to the former CJ’s thoughts, Beacons of Judiciary Transformation: Selected Speeches, Writings and Judicial Opinions of Chief Justice Willy Mutunga (Sheria Publishing House, 2021).
These essays highlight the need to rethink how to conduct political contests. Regular elections offer the possibilities of democracy and justice. When the elections are free and fair, voters feel included in the elections process and the subsequent governance practices. Mutunga notes that Kenyan politics is not as dirty as some individuals portray it. He notes that the Constitution of Kenya seeks to cleanse its politics of impunity, violence, and associated acts of criminality. He suggests that the judiciary is a handmaiden to the Constitution.
However, the former Chief Justice also cautions those responsible for managing the elections. In an address to the members of the IEBC, the former CJ told them, “In Africa, there is a widening chasm between voting and counting, an irony of literacy where peasants – most voters – know how to cast their ballots during the day peacefully, but graduates and computers – presiding and returning officers – forget how to count on election night.” Indeed, this very question was at the heart of the just concluded election. The key argument in the Supreme Court of Kenya was whether the elections were free and fair – did the numbers add up?
One of the petitioners argued that the figures the IEBC provided as the final tally did not add up with what it had claimed earlier on the voting day. The said petitioner provided evidence that several electoral malpractices gravely affected the results that the IEBC announced. However, the Supreme Court rejected the petition, arguing that the election was free, fair, and legitimate.
However, does this ruling answer the question of why Kenyan elections are often violent, involve the destruction of property, come with threats to specific individuals and groups of people to vote for a given political formation, or will suffer the consequences, etc.? After the electoral tragedy of the 2007 General Elections and subsequent elections in 2013, 2017, and 2022, which have all ended up contested in the Supreme Court of Kenya, from what point do Kenyans begin to have an open discussion on doing their elections differently – peacefully? (
— The writer teaches literature, performing arts, and media at the University of Nairobi. Tom.odhiambo@uonbi.ac.ke
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