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Kenya has a lot of problems that need fixing but the Supreme Court is not one of them

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On the first of September the Kenyan Supreme Court declared the elections of 8 August 2017 null and void. President Kenyatta publically declared that he disagreed with the ruling, but he respected the decision of the Court and was ready to hold elections again within sixty days. The Chairman of the Electoral Commission (IEBC) Mr. Chebukati said he would not resign but asked the Office of the Director of Public Prosecution to start an investigation and sue the members of the IEBC that did not act in accordance with their Constitutional duties. Very courageous and commendable from the part of the judiciary and the political elite but…those were only the initial reactions.

Friday evening already, at an election rally in Nairobi, that same President called the Supreme Court judges “crooks” and stated that if re-elected he was going to fix the judiciary. Not withstanding the fact that the Court stated earlier that day that there was no evidence of misconduct on the part of President Uhuru Kenyatta.

By making such a statement the incumbent President, who is probably still a favourite in the re-run, is polarising and politicising the decision of the Court undercutting his first statesmanlike declaration and the independence of Kenyan institutions at the same time. Although the decision by the Supreme Court is an example for other Kenyan institutions, most of them are still heavily politicised, so this is a warning from the incumbent President to those very institutions: don’t follow this example or I will fix you too.

On 11 August the day after the elections, Patrick Gathara writer and award-winning political cartoonist in Kenya gave his opinion on the absence of critical media in Kenya in the Washington Post:” Rather than preaching peace, the Kenyan media is earning its 30 pieces of silver by ignoring or editing out citizen frustrations in order to maintain a facade of normality. But there’s nothing normal about this silencing, the de-legitimization of those who feel the need to express their discontent through peaceful marches, or by ignoring those who may have died at the hands of the police.”

Political leaders should be asked to answer questions like: who ordered the security forces to crack down on voters like they did?  What is the state of the security sector reform that had been promised?  The conduct, education and control of the security forces have been a reoccurring issue in Kenya for years. Why have a lot of plans been made, good people put in place but has very little has been achieved?

Political leaders should answer when asked: who ordered the rigging, if there is no evidence of misconduct by the incumbent President Kenyatta? The six people of the Independent Electoral and Boundary Commission (IEBC) that are suspected of misconduct didn’t do it this on their own, somebody must have asked them to do this. And last but not least: who ordered the torture of Chris Msando, IT specialist of the IEBC ten days before the election?

These are only some of the questions that independent Kenyan institutions should be able to ask and answer following these elections and beyond. They are not given that freedom because there is no political will to allow them that space. On the contrary they are warned: if you are too independent we will “fix” that when (re-)elected on 17 October. The Kenyan Supreme Court took its decision knowing all this and that makes it all the more courageous and commendable.

Jean-Christophe Hoste, Senior Research Fellow Africa Programme.

(Photo credit:  World Economic Forum, Flickr)