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As a troop of red-coated soldiers and decorated generals stood to attention and the national flag fluttered in the breeze, the opening of Kenya’s parliament was observed with the usual pomp and ceremony.  

But as President Uhuru Kenyatta addressed the massed ranks of empty seats boycotted by opposition legislators, it became clear that Kenya’s fraught political system remains far from a return to normality.

Weeks after the Supreme Court’s extraordinary decision to annul the results of August’s Presidential election and order a rerun within just 60 days, Kenyatta and long-term opponent Raila Odinga, who is backed by the National Super Alliance (NASA) coalition, remain fundamentally divided over the future of the controversial Independent Electoral and Boundaries Commission (IEBC) – the crisis-hit overseer blamed by the Supreme Court for mismanagement of the first election.

With the poll rescheduled to 26th October, analysts fear that a second election could prove as problematic as the first.  “It’s a very tight window. Mr Odinga is threatening that he will not participate and NASA will boycott the election if the IEBC chief of staff is not replaced. Vice President William Ruto [from Kenyatta’s Jubilee Party] has said that will not happen,” says Rebekka Rumpel, East Africa expert at Chatham House.

“It’s going to be a tough situation legally and politically to get the IEBC in place in time to run another election.” For perennial opposition leader Odinga, the replacement of the IEBC’s leadership remains the non-negotiable precursor to a fair poll.

Having spent months warning of the possibilities of electoral fraud, Odinga and his supporters in NASA feel both vindicated and emboldened by chief justice David Maraga’s damning judgement that the IEBC had “failed, neglected or refused to conduct the presidential election in a manner consistent with the dictates of the constitution.”

Yet IEBC chief executive Ezra Chiloba – blamed by some for the fiasco – has resisted NASA’s demands to step aside, arguing that only minor irregularities took place in an otherwise free and fair vote. That defiance has sparked a power struggle at the IEBC between Chiloba and chairman Wafula Chebukati, later accused of bypassing Chiloba by appointing a new team to oversee the second election.

Factions at loggerheads

The animosity between the factions was underlined in a letter leaked to the public from Chebukati to Chiloba listing 12 concerns about the conduct of the first election. Yet just as the breach appeared irrevocable, Chiloba was confirmed as overseer of the newly appointed project team. This enraged NASA bigwigs, some of whom have talked of private prosecutions of IEBC staff and a “revolutionary moment” if the second poll is marred by irregularities.

“It’s become very divisive now because the narrative goes that the IEBC commissioners have been supported by NASA, and the secretariat, which is alleged to have muddled the election, is being supported by Jubilee,” says Njoki Wamai, post-doctoral associate at the University of Cambridge. “As long as the current commission exists and the commissioner and secretariat preside over the election, it doesn’t look credible. They may go out of their way to make it look credible but their legitimacy and credibility will be tainted.”

Yet wholesale reform just weeks before the election is likely to be challenging, not least because of the technological problems that beset the first poll. Drafting in a new team at short notice with little experience of managing a technically complex voting system could be a recipe for further disarray. 

“How do they overhaul everything, and bring new people in to understand the system? Do we retain the same officers who are alleged not to have acted above board in the last election? It’s quite a dilemma,” says Wamai.

The technical failures even bamboozled the estimated 400 international electoral observers – among them former US Secretary of State John Kerry – who have been ridiculed for the haste with which they declared the poll free and fair. Irregularities went largely unacknowledged, including the alleged failure of electronic results transmissions from a quarter of the 40,883 polling stations. Those oversights have led analysts to call for the adoption of new standards for the upcoming poll.

“An important lesson going forward is for observers to focus more on technology,” says Rumpel. “Being in a polling station and seeing that everyone is lined up in an orderly fashion – clearly that’s not so relevant anymore. It will need to be more about the election database, whether people are logging in and things being changed.”

With immediate solutions in short supply and Kenya’s political system now in unprecedented constitutional territory, party strategists are heading back to the campaign trail and recalibrating their messages for the electorate.

For Odinga and NASA, that means doubling down on the populist, anti-establishment economic messages that underpinned their first campaign. For Jubilee, it’s a reaffirmation of the steady economic growth and infrastructure improvements that Kenyatta claims to have delivered since his 2013 election.

The question for both parties remains whether the Supreme Court imbroglio will encourage voters to defect – or come out in even greater numbers for their chosen candidate.

“They’re both fully back in campaign mode – I think in terms of messaging it won’t be too different. [The court decision] will change the dynamics and some will be more likely to support Odinga while others will see Kenyatta’s win as legitimate and ask why Odinga is quibbling. I don’t know how likely it is that people will change but it’s certainly on everyone’s minds,” says Rumpel.

Avoiding meltdown

Given fears around the legitimacy and conduct of the rerun, concerns inevitably dwell on the aftermath of the vote. Further legal challenges to the result are a distinct possibility given NASA’s Supreme Court success in September. Sporadic violence – including an estimated 28 deaths – marred the first poll. If Kenya’s fragile political system is to avoid another meltdown, an unlikely spirit of compromise will have to emerge.

“After first reinstating the credibility of the election body it’s about making sure there’s no rigging – the deployment of volunteer observers in every polling station and making sure they are not intimidated is important so that when the results are out we can say whether Odinga or Kenyatta has won fairly,” says Wamai.

“That’s the first step and then whoever wins will have to invest a lot in meeting the other person halfway… it’s about that person doing much to bring half the population on board and for them to start a nation-building project.”

David Thomas

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