Mt Kenya Foundation — a league of top business and political leaders has refrained from publicly declaring its support for presidential hopeful Raila Odinga. An influential institution formed in 2007, the foundation’s approach is a tactical public retreat but its support for Azimio remains strong and unwavering.
As the presidential campaign gets into high gear and with only 48 days to the general election, a key plank of Raila Odinga’s support group has been very quiet and less and less visible from the public.
For the better part of 2021, the Mt Kenya Foundation (MKF) was very much in the limelight, meeting with the Azimio alliance presidential candidate in carefully choreographed business bashes, cocktail parties, prayer meetings and even in public rallies. Come 2022 and the meetings have gradually petered out.
Or, let’s put this way: their soirées are no longer being reported by the mainstream media, including their “in-house” media house, the Royal Media Services (RMS) owned by media mogul S.K. Macharia, one of the foundation’s members.
Two weeks ago, I had a lengthy discussion with one of their members, who told me that nothing has changed. “Our position and support hasn’t changed; Raila is still our preferred choice. We only decided to continue lending our support away from the public glare.”
The foundation still funds some of his presidential campaigns, albeit discreetly. “Our people [Gikuyu, Meru, Embu Association GEMA] were not, and are not, enthused by our [open] support for Raila. We were getting a lot of flak from them and we reckoned it wasn’t helping his and our cause. Nothing will sway GEMA from not voting for Raila. That’s the brutal fact.”
It’s not only MKF that has stopped declaring their support for Raila publicly. The Council of Elders, which in October 2020 made a hyped trip to Bondo, the ancestral home of the Odinga family in Siaya County, have equally gone mute. “After that trip, the [Kikuyu] people shunned our activities and seemingly avoided us,” one of the elders told me recently. “They didn’t take well to our partisan and public support of Raila.”
The MKF, which was formed in 2007, comprises among others, captains of industry, very senior and influential civil servants, and powerful politicians. The year 2007 was a critical juncture in the politics of Kenya: President Mwai Kibaki, who died in April 2022, was going to face Raila in the coming December presidential elections.
Although Raila had helped Kibaki clinch the presidential seat in the crucial 2002 general elections, against the greenhorn duo of Uhuru Kenyatta and William Ruto, by the end of his first term Kibaki had become Raila’s nemesis. Under the Orange Democratic Party (ODM) banner, Raila had already sent shivers down Kibaki’s party ranks that in 2007 elections ODM was ready to wrestle power from him.
It is against this backdrop that some of the richest among the GEMA fraternity coalesced around the MKF. Basically, it was a platform for raising campaign money for Kibaki’s second term. Not ready to witness another change of the rear guard just when they had begun consolidating their riches, after a 24-year hiatus during President Daniel arap Moi’s reign, this ethnic group was not about to take any chances.
Raila mounted a formidable if disorganised campaign. But just as he was on the cusp of wresting power from Kibaki, who was now running under the Party of National Unity (PNU), a new party that had been quickly cobbled together, the Electoral Commission of Kenya (ECK) —precursor to the Independent Electoral and Boundaries Commission (IEBC)—started relaying startling results.
What the end result of this “startling results” heralded for Kenya is now in the history books: post-election violence (PEV), over 600,000 internally displaced people (IDPs), unmitigated deaths officially put at 1,000 by the state, but recorded figure by non-governmental organisation (NGOs) placed the numbers at three time as much.
The MKF is not an entirely new invention—in 1996, some of the richest Kikuyus from Central Kenya came together to form the Central Province Development Support Group (CPDSG) in anticipation of the GEMA–KAMATUSA (Kalenjin, Maasai, Turkana, Samburu) peace talks. The supposedly “peace group” was formed presumably to stem (ethnic and post-election) tensions that first occurred after the first multiparty elections in 1992.
The talks were also supposed to culminate in the re-settling of the victims of the so-called tribal violence that had erupted in the expansive Rift Valley Province and which mostly affected the Kikuyu people. The reality is that this elite cabal that was again composed of influential civil servants, rich business people and powerful politicians was an informal lobby group that sought to campaign for the hated ruling party KANU and for President Moi in Central Province.
Then, as now, one of the constant figures in these formations has been S.K. Macharia; he belonged to the CPDSG just as he now belongs to the MKF. As with the CPDSG then, the MKF is a lobby group primarily concerned with the survival of its business interests.
William Kabogo, the first governor of Kiambu County who is seeking to reclaim his seat in 2022, wrote on his twitter handle: “If you care to know Mt Kenya Foundation specializes on fundraising but the big question is do the funds go to the intended purpose? Your guess is as god as mine. Caveat emptor.”
Among the MKF membership is Mutuma Nkanata, the foundation’s coordinator who is also the CEO of the NGO Coordination Board—the regulatory board for NGOs in Kenya. He is also the Chairman of Kirimara Sports; a Meru-based sports development organisation.
Another member is the former Kenya Revenue Authority (KRA) boss Michael Waweru. Waweru was appointed commissioner-general of KRA in 2003 by Kibaki. His contract ended in 2012. An accountant by profession, he was the managing partner at Ernst & Young (EY) – East Africa until 2002.
Also in MKF is Peter Munga, founding chairman of Equity Bank group and one of its largest shareholders. Munga is also a shareholder at Britam, the financial services conglomerate, and a founder of the Pioneer Group of Schools.
MKF member Titus Ibui is the chairman of Lamu Port South Sudan, Ethiopia, Transport Corridor Development Authority (LAPSSET), a regional infrastructure partnership between Ethiopia, Kenya and South Sudan. Ibui is also the vice chairman of Kenya Leather Council and founder and executive director of Bell Industries Ltd., an agri-business and health solutions company.
Zamara Group chairman, politician and former MP Dennis Waweru is also an MKF member, as is businessman Wilfred Murungi, owner of Mastermind Tobacco Kenya (MTK).
During one of the Raila meetings organised by MKF on 28 September 2021, communications director Joe Murimi said, “The Tuesday (September) meeting between MKF and Mr Odinga is also with a view to coordinating resource allocation and setting priorities for the region’s economic turn-around ahead of 2022. We’re listening to all presidential contenders and our interests as a region are way bigger than only the position of a deputy president.” The foundation had previously met with Raila in June 2022.
Some of the personalities in the June meeting included President Uhuru’ influential maternal uncle, former Catholic priest George Muhoho, Media mogul Macharia and former Kenya Chamber of Commerce vice chairman, James Mureu.
At the meeting, Macharia claimed that it was President Uhuru Kenyatta who made overtures to Raila Odinga. “I’m saying that handshake, we ask him (Uhuru) to leave it in good hands so that it can continue. We believe President Uhuru will leave this country in good hands, the hands he went looking for.”
At that meeting Nyandarua County governor Francis Kimemia confessed that the Kikuyu political class had peddled falsehoods against Raila. “Our work was to tarnish Raila’s name, but now we must change that narrative and tell our people that that was politics then. He asked the class to help undo the lies.”
Two months ago, in April 2022, campaigning in his own Nyandarua County, Kimemia changed his tune, insinuating that President Uhuru had not kept his promise on developments projects in Nyandarua. I called my friend Njenga from Rurii location, to find out was going on with governor Kimemia. “Kimemia was told by the people in no uncertain terms that campaigning for Azimio would take him nowhere, so he got the drift, changed tune and started bashing President Uhuru.”
As MKF makes a tactical retreat in its support for Azimio, it is not only Kimemia who has changed his tune; many of the politicians from the Azimio camp seeking elective posts in Mt Kenya are careful not to mention Azimio or even Raila’s name in their campaign rallies.
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Role of IEBC Chair and Commissioners: What Is in the Name “Returning Officer”?
Voter Apathy Among the Youth Is Not a Sign of Political Apathy
Will the Supreme Court Send Kenyans Back to the Ballot?
Four Reasons Why Raila Odinga Struggled in the 2022 Kenyan Elections
Elections: The Cruel Harvest of Kenyan Emotional and Intellectual Labor
Is It the IEBC Chairperson or the Commission Who Declares a President-Elect?’
At the core of the latest IEBC controversy is the question of whether or not commissioners have a role to play in counting, tallying, verifying, and announcing the presidential results. Public opinion is divided but what many pundits have ignored is the role and structure of the IEBC.
The Independent Electoral and Boundaries Commission (IEBC) sent shock waves across the country when different commissioners gave inconsistent positions on the credibility of the recent presidential election. Kenya is no stranger to public drama by IEBC Commissioners. In 2017, an IEBC Commissioner resigned ahead of a re-run of the presidential election and fled to the US. Then followed the resignation of three commissioners alleging the improper removal of the CEO and claiming lack of faith in the IEBC chairperson’s leadership.
Once again, and just as the IEBC chairperson was announcing the presidential election on 15 August 2022, four commissioners rushed to Serena Hotel to issue a presser disowning the results for what they termed as the “opaque” manner in which the results have been handled. Counteraccusations ensued, with the IEBC chairperson accusing the commissioners of attempting to “moderate results”, an allegation that they vehemently opposed. At the core of this IEBC circus is whether commissioners have a role to play in counting, tallying, verifying, and announcing the presidential results. Public opinion has been divided over the role of the IEBC commissioners in the conduct of the presidential election but what many pundits have ignored is the role and structure of the IEBC, as part of the independent commissions, which might shed light on the commissioners’ role in the presidential election.
This piece argues that a holistic reading of the constitution on the conduct of the presidential election reveals that the IEBC, including the commissioners, should be involved in all stages of the election. To prove this, it makes three arguments. First, Article 138(3) (e) of the constitution enshrines the role of the IEBC as a body in the conduct of presidential elections. Second, the jurisprudence on the running of the business of the IEBC provides for the centrality of the commissioners as the “linchpin of the Commission”. Third, the architecture of the independent commissions as watchdogs of democracy ingrains internal checks and balances and disfavours limitless powers of an individual or of one arm of the commission. Lastly, the paper debunks the analogization of the role of the IEBC and chairperson and returning officers. It offers three reasons why the parallelism of the two positions commits the logical fallacy of false analogy or false equivalence.
This article proceeds on the assumption that the IEBC chairperson exercised the role of the national returning officers to the exclusion of other commissioners. It is informed by the chairperson’s statement released on 17 August 2022, where the chairperson quotes the role of returning officers as being to tally, verify, and announce results. He concludes, “The role of the National Returning Officer for Presidential Election is not shared responsibility and not subject to Plenary decision of the Commission.” The paper argues that the chairperson of the IEBC has failed to examine his role in the context of the entire constitutional provisions on the conduct of the presidential election and operations of the commission.
While the failure to involve the commissioners raises an important question, this piece observes that it is not enough to overturn the election. Beyond demonstrating the lack of participation of the commissioners, it must be shown that there is a “substantial effect” on the integrity of the election as a whole.
As in any other election, in the presidential election, under Article 86 (c) of the Constitution, the IEBC is required to ensure that the results from the polling stations are openly and accurately collated and promptly announced by the returning officer. This generic provision lays out the oversight role of the IEBC in the conduct of the election. Public discourse over the election has been engrossed in the question of the exact duty of the commissioners in the conduct of the presidential election. Some have taken their scepticism to the extent of questioning the reason for voting if the commissioners “have a say in the presidential election results”. Others have argued that the law only requires the IEBC commissioners to vote only on the business of the commission, and the presidential election is not a business of the commission.
While the arguments on the commissioners’ role and the perception of subversion of the will of the people raise an essential question, these contentions fail to address the broader context of the presidential election. The presidential election requires a heightened oversight because of its importance and critical nature in Kenyan society. This part considers the constitutional provisions which give the commissioners a general oversight role, including verification of forms 34A and 34B to determine their accuracy.
Some have taken their scepticism to the extent of questioning the reason for voting if the commissioners “have a say in the presidential election results”.
It is crucial to first clarify that this debate is not about the quorum of the IEBC. The quorum of the IEBC has been used to conflate it with the debate on the role of the commissioners in the presidential election. However, the question of the role of commissioners is distinct from the question of quorum. Quorum addresses the question of whether there are enough commissioners to transact business, an issue that was settled in the BBI case. The pertinent issue in the current discourse is the role of commissioners since they were present but did not participate for lack of a part to play in the process. For quorum to be an issue, all commissioners should have received a notice to attend the plenary, but only the minimum number availed themselves.
A holistic reading of the constitution on the nature of the independent commissions reveals the integral role that commissioners play in overseeing the implementation of a commission’s functions. In this part, I argue that most proponents of a super-chairperson of the IEBC on the national tabulations of presidential results fail to read the constitution holistically. Specifically, they fail to examine the structure and functioning of the independent commissions, including the IEBC. An isolationist and narrow reading of Article 138 (10) of the constitution on the role of the IEBC chairperson will lead to an erroneous conclusion that the IEBC chairperson collates, tallies, and verifies forms 34A and 34B received from the polling stations. This piece cautions against drawing hasty conclusions regarding the role of the IEBC chairperson from reading a single article of the constitution.
Chapter 15 of the constitution provides for the architecture of the independent commissions. Article 249 of the constitution decrees the object of these bodies as the protection of sovereignty, and promoting democracy and constitutionalism. The commission’s composition and nature are listed in Articles 250 and 253 of the constitution, and it is stated to be a corporate body. The commission as a body functions in a manner that guarantees internal accountability, as depicted by the uneven number of commissioners and the insistence that the existence of the commission depends on the existence of commissioners.
Most proponents of a super-chairperson of the IEBC on the national tabulations of presidential results fail to read the constitution holistically.
Kenyan courts have discussed the place of commissioners in relation to the secretariat. A close look at some of the foundational cases on independent commissions will shed light on the relationship between the chairperson of the IEBC and commissioners as a body. One typical running theme is that the commissioners are the linchpin of the commission, and no duty is beyond the commissioners’ oversight since they are the nub of the commission. This argument does not mean they have unfettered powers—even to the extent of changing election results—but they can oversee and note mistakes on the report to be submitted to the Chief Justice.
At the centre of their function is policymaking for implementation by the secretariat, and oversight. The rationale for the emphasis on the centrality of commissioners is that they are responsible for realizing the mandate of the IEBC as an enabler of democracy and a guarantee of the right to self-determination. The secretariat assists the commission in the discharge of its mandate. Court decisions on the relationship between the secretariat and the commissioners reveal the vital place of commissioners in discharging the commission’s mandate. In the Constitutional Application N° 2 of 2011, the court was emphatic that “the several independent Commissions and offices are intended to serve as ‘people’s watchdogs’ and perform this role effectively”.
Courts in Kenya have termed the existence of commissioners as a foundation for the powers of the secretariat. The implication is that for a commission to exist properly, it must have commissioners; from there, all other functions flow. Ordinarily, the outcome of the functioning of the secretariat should be ratified by the commissioners of the IEBC. In Michael Sistu Mwaura Kamau v Ethics and Anti-Corruption Commission and 4 others 2017, the court stated,
“The Secretary and the Secretariat can only carry out the powers vested in their offices when the Commission exercises its powers since they implement what the Commission has resolved. The Commissioners must ratify the outcome of the tasks undertaken by the Commission’s staff if they are to be deemed as the decisions of the Commission” (Emphasis mine).
Therefore, given the central position of the commissioners in the conduct of all functions of the IEBC, they cannot be excluded from an essential role in the national conduct of the presidential election. Although officers of the IEBC might have specific statutory duties, the exercise of their functions is subject to general oversight by the commissioners. Therefore, officials such as returning officers assist the commissioners in conducting the election at the lower levels. It is illogical to argue that returning officers can exclude the commissioners from oversighting the elections they are conducting.
The general posture of the Kenyan constitution is that it adopts a pessimistic outlook on those who wield power. This position of the constitution informs the distribution of duties among various parts of the IEBC. Here, I will argue first that Article 138(3) (c) of the constitution provides for the general task of the IEBC as a body, the chairperson’s role being limited to the announcement of the presidential election results under Article 138 (10) of the constitution. Second, I will contend that the constitution does not eliminate the oversight role of commissioners regarding the presidential election. Third, the constitution is aversive to an individual exercising monopoly of power. Put differently, the constitution favours the distribution of powers, oversight, and internal checks and balances. Lastly, I will deflate the false analogies of equating the chairperson of the IEBC in the conduct of the presidential election with other returning officers. I will argue that it is a simplistic view of the conduct of the presidential election.
As a body the IEBC has the role of the conducting of the presidential election. Article 138 (3)(c) of the constitution provides that in the presidential election, the IEBC shall tally, verify, and declare the results after counting the votes in the polling stations. This role is given to the commission as a body to be discharged by its employees with the commissioners’ oversight. At the national level, the IEBC verifies and tabulates forms 34As and 34Bs to generate form 34C. All commissioners have a right to be involved in the tabulations in the exercise of their oversight role over the employees of the IEBC.
Although officers of the IEBC might have specific statutory duties, the exercise of their functions is subject to general oversight by the commissioners.
Unlike Article 138(3)(c), which provides for the general role of the IEBC, Article 138(10)(a) of the constitution provides that the chairperson of the IEBC shall declare the results of the presidential election. The implication of this is that the role of the chairperson is exclusive in so far as the declaration of the presidential result is concerned. The chairperson does not single-handedly oversee the secretariat in the generation of form 34C, which contains the collated presidential election results. Additionally, the commissioners have a role under Article 86 of the constitution to ensure that results are accurately collated and announced by returning officers. In this case, and for argument’s sake, even if we equate the chairperson to the returning officers who announce the results, the commissioners will have an oversight role over him on how the national total results are arrived at. This oversight will ensure that the chairperson of the IEBC is accountable to the commission in the conduct of such an important role. The Court of Appeal in Al Ghurair Printing and Publishing LLC v Coalition for Reforms and Democracy and 2 others 2017 held that the commissioners formulate strategy and oversight IEBC employees and the commission’s functions, meaning that the tabulation of results in the forms was subject to the supervision of the commissioners.
To counter the above arguments on the commissioners’ involvement, some people have argued that commissioners are not required to oversee other elections before various returning officers announce them. This argument fails to consider the unique nature of the presidential election in our constitutional design. Of course, all polls are unique, and in substance, they are supposed to adhere to the same constitutional principles. However, due to the controversies surrounding the presidential election, the constitution favours the involvement of commissioners as a collegial body to guarantee electoral integrity. Because of Kenya’s history in the presidential election, the constitution requires heightened oversight at all election levels, especially the final national tabulations.
The other counterargument offered is that the IEBC chairperson exercises the powers of a returning officer, which are individualized duties not subject to the plenary powers of the commission. To answer this claim, I make three arguments. First, the characterization of the role of the chairperson of the IEBC as a presidential returning officer does not mean that the commissioners are excluded from oversight of the national tallying of the presidential election. Put differently, the characterization should not affect examining the exact constitutional dynamics between commissioners. Thus, the commissioners have a role in oversighting the chairperson of the IEBC because he exercises the commission’s mandate.
Due to the controversies surrounding the presidential election, the constitution favours the involvement of commissioners as a collegial body to guarantee election integrity.
Secondly, while the role of the IEBC chairperson has a similarity with that of the returning officers of other elections, they are not the same. Under section 38 of the Election Act, the returning officer is responsible for conducting the election. Further, section 39(1A) of the Election Act provides that the returning officer is responsible for tallying, collating, and announcing the election results. In contrast, Article 138(3)(c) of the constitution provides that the responsibility of conducting the presidential election lies with the IEBC. While the chairperson of the IEBC exercises specific duties similar to those of IEBC returning officers, the constitution explicitly adopts the language of the IEBC as a body when addressing the specific electoral duties such as counting, verifying, and tabulating the presidential election. Contrasting Article 138(3)(c) of the constitution with Article 138(10)(a) of the constitution, which provides that the IEBC chairperson shall announce the presidential election, demonstrates that he exercises constricted powers. When it comes to the announcement of the results of the presidential election, Article 138 (10)(a) of the constitution drops the language of the commission and specifically identifies the chairperson as the individual with the role of declaring the aggregated results. Therefore, if the constitution wished the chairperson to singlehandedly exercise the role laid out in Article 138(3)(c) of the constitution, it would have included it in Article 138(10) of the constitution or in any other part that exclusively addresses the duties of the chairperson of IEBC.
Thirdly, the involvement of the chairperson of the IEBC in announcing the presidential election demonstrates a constitutional intention of engaging the highest levels of the commission in the national tabulations of results and declarations. The functions listed under Article 138 (3)(c) of the constitution, especially the national tabulation of results, involve the highest organs of the IEBC. The rationale for this involvement of the highest organs of the commission is not hard to discern, owing to the perennial controversy surrounding the presidential election in Kenya. The commissioners are selected with a unique obligation of securing democracy, and what other level epitomizes this democracy if not the presidential election? The stakes in the presidential elections are very high in Kenya, and it would be barmy not to involve the entire commission or vest the national level powers only in the chairperson of the IEBC. Granting the IEBC chairperson the exclusive role of the presidential election returning officer to the exclusion of the commissioners has no serious constitutional value. With regards to the manipulation of results, the presumption should be that the more transparency and involvement, the less likely it is for them to be changed.
The import of the case of Maina Kiai on the powers of the chairperson of the IEBC has caused considerable controversy in the country. Some have argued that the Kiai case addressed the issue of whether the chairperson can change the results declared at the polling station. Others have argued that Kiai’s statement on the powers of the IEBC chairperson was an obiter dictum. This part seeks to answer these questions and make the fourth argument why the commissioners of the IEBC should have been involved in the conduct of the presidential election.
The answer to the concerns raised regarding the relevance of Kiai on the discourse on the role of commissioners is both “yes” and “no” because the case touches on the role of the chairperson of the IEBC and yet not in the manner in which the four commissioners cite it. On the one hand, the Kiai decision is relevant to the extent that it indicates the scope and nature of the role of the chairperson of the IEBC. Although not exactly dealing with the current crisis, it elucidates the role of the chairperson of the IEBC in the conduct of the presidential election. On the other hand, the Kiai decision does not address the role of the commissioners versus the chairperson of the IEBC in the conduct of the presidential election. The implication is that when the court is discussing the limitation of the powers of the chairperson of the IEBC, it is doing so in the context of whether the chair can alter the results announced at the polling level. Nevertheless, the Kiai case sheds light on the nature of the powers of the chairperson of the IEBC. From Kiai’s case, it is clear that the chairperson exercises limited powers, and the constitution disfavours the chairperson from having exclusive powers in the presidential election other than the announcement of the collated results.
The commissioners have a role in oversighting the chairperson of the IEBC because he exercises the commission’s mandate.
The constitution disrelishes the concentration of powers on one individual in the conduct of an important election such as the presidential one. This is to ensure an effective discharge of the role of the IEBC as the safeguard of democracy and the right to self-determination. The nature of the independent commissions as having embedded checks and balances was articulated by the Supreme Court in the matter of the National Land Commission (2015). The court believed that checks and balances were the mainsprings of accountability. It stated that “the spirit and vision behind the separation of powers are that there be checks and balances and that no single person or institution should have a monopoly of all powers.”
The commissioners provide a heightened level of oversight and verification, which means that the chairperson cannot act unilaterally in the tabulation of forms 34A and 34B. It is illegitimate for the chairperson to conduct the presidential election in an exclusionary way, especially the generation of form 34C without the involvement of other commissioners. This conduct goes against the rationale of the independent commissions, which is to be the people’s watchdog for democracy. The Court of Appeal captured this position in Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others (2017):
“To suggest that some law empowers the appellant’s Chairperson, as an individual, to correct, vary, confirm, alter, modify, or adjust the results electronically transmitted to the national tallying centre from the constituency tallying centres, is to donate an illegitimate power . . . We reiterate, as we conclude that there is no doubt from the architecture of the laws, we have considered that the people of Kenya did not intend to vest or concentrate such sweeping and boundless powers in one individual, the Chairperson of the appellant.” (Emphasis mine.)
In sum, while the Kiai case did not directly deal with the role of the commissioners and chairperson, the obiter indicates the limited powers of the IEBC chairperson. The court in Kiai’s case reinforced the need for a limited role of the chairperson of the IEBC in line with Article 138(10) (a) of the constitution. Thus, to ensure the IEBC’s accountability and checks and balances, it is constitutionally absurd to exclude commissioners from verifying the presidential election.
Overturning an election should not be an easy task for any petitioner. This is because the election represents the people’s will, and the courts should be slow in overturning the people’s expressed will without clear and convincing evidence. There is also a presumption that the actions undertaken by government officials are legal unless they are impeached by evidence. The other concern is that elections are expensive, and for a developing country like Kenya, economic realities should be balanced with constitutional purity.
Globally, no election is perfect, so normal errors do not suffice to overturn an election. The core question is whether the errors or irregularities are substantial enough to overturn an election. Section 83 of the Election Act provides that non-compliance with the constitution and the law must substantially affect the election. In Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others (2017), the court held that trivial irregularities are not enough to overturn an election, and the error must have a substantial effect on the election. Further, the court noted that the election should be looked at as a whole to determine whether the constitution has been substantially breached.
The Kiai decision does not address the role of the commissioners versus the chairperson of the IEBC in the conduct of the presidential election.
The failure to involve commissioners in generating form 34C should not automatically invalidate the election. The constitution does not adopt a purist approach to the election. Instead, all mistakes must substantially affect the integrity of the election. A presidential election is a highly regulated process. If it is proved that the results in forms 34As and 34Bs were collated adequately at the national level, the non-involvement of the commissioner will not rise to the “substantial effect” level.
However, if it were to be demonstrated that the failure to include the commissioners led to unverified results, which have numerous mistakes, then the non-involvement would have substantially affected the election. The errors would not be characterized as “harmless errors” because they would have a tangible effect on the election’s credibility. The commission as a body would have failed to realize its mandate of conducting a free and fair election as enshrined in Article 86 (c) of the constitution. Thus, the commissioners’ oversight role in the conduct of the presidential election would be unconstitutionally impeded, leading to the unverifiable and inaccurate collation of results at the national level.
To conclude, a hasty and exclusive reading of Article 138(10)(a) of the constitution would lead to the erroneous conclusion that only the chairperson of the IEBC has the role of tallying, verifying, and declaring presidential results in forms 34A and 34B. However, a holistic reading of the constitution and jurisprudence on the structure and the functioning of the IEBC demonstrates that commissioners should be involved in generating forms 34C for the presidential election.
We should be careful not to equate the youth’s apathy towards mainstream political structures with a disinterest in politics and social change.
On Tuesday 9 August, Kenyans went to the polls to vote in what one columnist called “The Most Boring Election.” As the general election approached it was suggested that the youth could provide a critical swing vote in a neck and neck race between the two main presidential candidates, veteran politicians Raila Odinga and William Ruto. Seventy-five per cent of Kenyans are under the age of 35; the youth eligible to vote made up 40 per cent of the electorate.
Both candidates were not oblivious to the power of this voting bloc. For example, William Ruto made “hustling” a cornerstone of his campaign. Drawing on his experiences as a young man selling chickens, Ruto’s campaign slogan, “Every Hustle Matters”, was a direct appeal to the youth vote. Ruto buttressed his campaign slogan with a promise to create a Sh50 billion (US$417 million) credit fund for hustlers and to get rid of political dynasties like the Odinga and Kenyatta families. In opposition to Ruto’s bottom-up vision of development, Odinga attempted to capture the youth vote with the promise of a social protection programme that includes a monthly Sh6,000 ($50) basic income grant for vulnerable households and free education from pre-primary to university. Both candidates promised to put an end to corruption.
Despite these campaign promises, Kenya recorded its lowest voter turnout in 15 years. The youth, in particular, were absent from the ballot with one election observer noting “We were concerned about the low registration of younger voters. We were expecting six million new registered voters but only three million turned up.” One reason why the youth do not vote is because they are cynical about politics. Politicians are not just seen as corrupt, but institutional politics itself is seen to be corrupting. Another is that the youth, despite being the largest demographic, are underrepresented in the political landscape, causing them to disengage from democratic structures and processes (only 2 out of 349 parliamentarians are under the age of 30). Others point out that disinformation, the current cost of living crisis and a lack of technology to make voting easier further exacerbated low turnout amongst the youth. Regardless of the reasons, there seems to be a belief that Kenyan youth are apathetic towards politics. However, we should be careful not to equate apathy towards mainstream political structures with a disinterest in politics and social change.
The youth are a disenfranchised majority both economically and politically. Economically, the youth in Kenya struggle to access secure employment and basic necessities for everyday survival. For example, young people make up 80 per cent of the 2.3 million unemployed. When young people do manage to find work, it is often in the informal sector where the lines between “legal” and “illegal” are blurred and income is sporadic and precarious.
This economic exclusion is also intimately linked to political marginalisation. In the last three decades, rural poverty and economic hardship have driven large numbers of people to urban areas where they often end up in informal settlements. More than 60 per cent of Nairobi’s population live in informal settlements that make up just six per cent of the land – the majority of whom are under the age of 30. In these spaces, there is a lack of access to basic services and infrastructure. Moreover, the youth are often over-criminalized and subject to police brutality. A report by the Mathare Social Justice Centre documented 803 extrajudicial killings by the police between 2013 and 2016 – most of the victims were young men. Therefore, the youth often experience a form of exclusionary citizenship where their rights are regularly undermined and, as a result, there is an obvious disintegration of the social contract between the youth and the state. Against this backdrop of a lack of formal employment and limited representation in institutional politics, the youth recognise that they need to make claims to economic distributions and political power in novel ways to respond to their marginalisation.
In the lead-up to the elections, the youth and community activists in Kibera and Mathare, the two largest informal settlements in Kenya, campaigned relentlessly for peace. Artists, thespians and activists held regular, lively community meetings and peace walks to encourage cohesion and solidarity within the ethnically diverse neighbourhoods. At one peace walk, young thespians belonging to the “Social Justice Travelling Theatre” performed a satirical play on the streets of Mathare. The actors, in character as politicians, made lofty promises like, “I promise to pave the road all the way to your door, to build a swimming pool in your bedroom,” eliciting much hilarity from the audience which no doubt found them quite relatable to the current moment.
When young people do manage to find work, it is often in the informal sector where the lines between “legal” and “illegal” are blurred and income is sporadic and precarious.
Other youth groups hosted football tournaments, put on choreographed dance shows or hosted gospel concerts. This is one example of how the youth engage in political acts using art, music and youth-oriented social networks rather than traditional party politics. Ariadne Vromen views this type of political participation as, “acts that can occur, either individually or collectively, that are intrinsically concerned with shaping the society that we want to live in.” Here, the groups were not envisioning change through the electoral process, but rather encouraging post-election peace by pointing out that politicians only pay attention to the youth when they need a vote. If the youth perceive politicians as using them, is the apparent “youth voter apathy” then not a radically political act?
Another example are the “hustlers” that Ruto romanticises. Hustlers are often associated with the youth living in informal settlements who have to engage in multiple forms of precarious work to make ends meet. Hustling embodies the admirable ability of the youth to shrewdly improvise in order to survive, yet it is also an act that blends political activism with everyday activities. For example, hustlers in Nairobi’s informal settlements often engage in basic service delivery like garbage disposal, provision of water and sanitation services and distribution of solar lighting – basic services that are usually under the purview of the state. Here, hustlers may not perceive themselves as practising politics, but through their provision of basic services, they question the state’s authority by appropriating its constitutional responsibilities. After all, these hustlers, through their everyday acts of survivalism, are pointing out the failure of the state to fulfil its duties by stepping in to fill the void – is that not a political act?
Hustling embodies the admirable ability of the youth to shrewdly improvise in order to survive, yet it is also an act that blends political activism with everyday activities.
Finally, this is not to say that the youth do not engage in campaigns that are more easily identified as political. Moving away from party politics, the youth are engaging with civil society and grassroots activism in droves. In Mathare, the Mathare Social Justice Centre has set up a network of over 20 smaller centres to monitor human rights abuses in the community and to protest injustices. The social justice movement also seeks to advocate for access to basic services and for ecological justice. Other organisations like the Slumdwellers Federation and Ghetto Foundation are similarly mobilising the youth for collective action campaigns and spurring civic education. There are also a plethora of youth-led development groups that advocate for women’s rights, access to healthcare and engage in environmental programmes.
Interacting with the lives of the youth, especially in low-income areas, shows that they are not apathetic to what is happening in society. On the contrary, they are politically astute and acutely aware of the inequalities that surround them. Recognising their shared marginalisation, the youth are sceptical of politicians who promise solutions to their problems and consciously choose not to interact with hegemonic political structures. Instead, they are developing new forms of politics that are intimately linked with everyday activities, kinship networks and popular culture. And while it is not clear whether these alternative forms of politics will spur meaningful change, what is clear is that the youth are not apathetic.
As in 2013 and 2017, the fate of Kenya’s presidential election has been placed in the hands of the Supreme Court.
On Monday 15 August 2022, Kenya’s Independent Elections and Boundaries Commission (IEBC) Chairman, Wafula Chebukati, announced William Ruto of the Kenya Kwanza alliance as the country’s President Elect with 50.5 percent of the popular vote narrowly beating Raila Odinga of the Azimio la Umoja alliance with 48.8 percent.
As in 2013 and 2017 however, the fate of Kenya’s presidential election currently lies in the hands of the Supreme Court. This follows coordinated press statements by four Independent Elections and Boundaries Commission (IEBC) commissioners on 15 and 16 August, and by long-time opposition leader Raila Odinga on 16 August, and the submission of election petitions to the Supreme Court by Azimio and a group of Kenyan citizens on 22 August.
At the briefings on 15 and 16 August, the four commissioners stated that they could not “take ownership of the results” announced “because of the opaque nature which these results have been handled”, and because the total tally surpassed 100 per cent of the valid votes cast by 0.01 per cent even though the latter is likely due to a rounding error.
Odinga followed with a synchronised press briefing in which he argued that, because the “IEBC is structured as a democratic institution in which decisions must be taken either by consensus or by a vote of the majority . . . Chebukati’s announcement purporting to announce a winner is a nullity” and that his Azimio alliance would pursue “constitutional and lawful channels and processes to invalidate Mr Chebukati’s illegal and unconstitutional pronouncement”.
Azimio then added to these allegations in their election petition with claims that, among other things, some of the polling station-level forms (or forms 34A) were changed on the IEBC portal by hackers associated with Ruto; votes were added to the presidential vote in certain constituencies; the final results were declared without all forms 34A having been “received, uploaded and made publicly available for scrutiny”; Ruto failed to secure 50 per cent + 1 vote and so did not secure a first round victory; and the gubernatorial races in Kakamega and Mombasa were postponed with the “ulterior motive” of reducing turnout in Odinga strongholds.
It is yet to be seen whether or not the Supreme Court will view an announcement as a decision that requires consensus or a vote, and what detailed evidence Azimio will provide to support their claims of procedural problems and electoral malpractice, and how the court and Kenyans will respond.
What is clear however, is that, while Odinga and Azimio seemed to have an advantage going into the elections, the polls were incredibly close, with Ruto and Kenya Kwanza doing well at every level. Thus, while Ruto was announced president-elect with 233,211 votes more than Odinga, the Azimio petition claims that, when manual votes are included, Ruto actually secured 49.997 per cent of the popular vote. The upper and lower houses were also initially fairly evenly split. Thus, before a series of defections to Kenya Kwanza and before any electoral petitions, the Senate was initially composed of 33 Kenya Kwanza, 32 Azimio and 2 non-affiliated senators, and the National Assembly of 164 Azimio, 165 Kenya Kwanza, and 14 non-affiliated members of parliament (MPs) (with 6 seats yet to be declared) – while 21 governors were in Azimio, 22 in Kenya Kwanza, 2 independent, and 2 yet to be elected due to a mix-up with the gubernatorial ballot papers for Kakamega and Mombasa.
Odinga’s perceived advantage going into the polls stemmed from a number of factors. These included his track-record as an opposition leader of long-standing and support from the incumbent President Uhuru Kenyatta. The latter translated into a sizeable war chest and the support of various state officials. The latter included chiefs in the national administration who, from my own research in Nyanza and the Rift Valley in the months prior to the elections, were found to be more proactive at mobilising voter turnout in Odinga than in Ruto strongholds, while many openly encouraged people to vote in line with the government. Odinga also enjoyed the support of a number of vocal civil society leaders, while some of the country’s main media houses were also widely perceived to be biased towards him. In this context, it was perhaps unsurprising that opinion polls ahead of the elections showed that Odinga had the momentum behind him, and was enjoying a marginal lead.
Nevertheless, the election remained too close to call in the weeks ahead of the polls. President Kenyatta’s support for Odinga – in the context of widespread dissatisfaction with the government’s performance especially around the all-important question of the economy – failed to sway many voters including in Kenyatta’s former stronghold of central Kenya where a majority rebelled against Kenyatta and voted for Ruto. Similarly, chiefs, who are state officials with increasingly minor duties, enjoy little capacity to direct the Kenyan voter.
Indeed, Kenyatta’s backing ended up being a poisoned chalice: it made Odinga appear to many as a “project”, rendered it difficult for Azimio to develop a clear campaign message that resonated with the majority of Kenyans, and encouraged a sense of complacency amongst many in the Azimio team. As a result, Odinga lost ground to Ruto and suffered from relatively low turnout in his former strongholds – most notably in Nyanza and at the Coast – and failed to make anticipated inroads into central Kenya.
On the other hand, Ruto and Kenya Kwanza undertook an impressive campaign. Ruto started early and traversed every part of the country. He also had a clear national message – he was a “hustler” who understood the problems facing the average Kenyan and would focus on a bottom-up process of economic reform that would bring capital and jobs – and ensured that he spoke to local issues wherever he went (somehow remembering the names of local leaders and places, and local development and socio-economic concerns, during his relentless tours). Ruto also emphasised his Christianity, made controversial donations to churches, and sought to distance himself from his association with violence during the post-election crisis of 2007/8 through (among other things) his religiosity, his backing of Kenyatta in 2013 and 2017, and focus on Kenyans’ economic troubles, and made much of his youth and energy, as compared to his older competitor.
Chiefs, who are state officials with increasingly minor duties, enjoy little capacity to direct the Kenyan voter.
Ruto also oversaw a more united alliance. Thus, while interviewees spoke of divides within Azimio – particularly between Odinga’s Orange Democratic Movement (ODM) and Kenyatta’s Jubilee Party (JP) – Ruto’s United Democratic Alliance (UDA) remained dominant in Kenya Kwanza, and did a relatively good job at managing the party nominations.
As noted, we do not yet know what detailed evidence will be brought to court, whether the court will call for a fresh election, and whether Azimio would accept to go back to the polls with the current IEBC commissioners in place or call for a postponement and reforms. We also not do not know – if a fresh election were to be held – how such a competition would go. Much would depend on the evidence presented – and whether or not the general public comes to feel that the wrong person was announced the victor on 15 August – the resources that the two candidates have available, and turnout. The latter is particularly important. While the 9 August polls showed a relatively low turnout of 65 per cent, this would likely fall in any fresh election given that, as in previous elections under the 2010 Constitution, many Kenyans were likely not motivated to vote on 9 August by the presidential election, but by one of the other five elections held on the same day.
However, as things stand today, Ruto appears to be in a fairly strong position. Many Kenyans are tired of the elections and struggling economically and, if detailed evidence of electoral malpractice is not forthcoming, are likely to feel sympathetic towards the president-elect. Some who may have felt that Odinga was likely to win as the president’s favoured candidate, may feel more emboldened to vote for Ruto if the Supreme Court were to order a re-run. Finally, while Azimio and Kenya Kwanza have shared seats at various levels, it is Ruto’s UDA that has emerged from the elections as the strongest individual party with 24 senators and 17 governors as compared to ODM with 13 senators and 13 governors, which will likely help to facilitate a more intense grass-roots campaign for Ruto if a fresh presidential election does need to be held. Ruto’s position has been further strengthened by a movement of elected politicians towards Kenya Kwanza. This shift was spearheaded by 10 independent candidates who declared their backing of Kenya Kwanza on 17 August, followed by the United Democratic Movement (UDM), which moved from Azimio to Kenya Kwanza on 18 August taking with it 45 elected politicians including two governors, two senators, and 7 MPs.
As it stands, the country remains divided between supporters of Kenya Kwanza, supporters of Azimio, and those who believe that neither alliance will have much impact on their daily lives and who just want to make a living and support their families. Ultimately, it will be the latter group – and the numbers of them who can be persuaded to vote and for whom – that will determine any fresh election. Thus, while the official campaign period ended on 6 August, the informal campaigns and politics of persuasion will continue for some time to come.
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