Thread by @Fromagehomme

What happens if the Supreme Court nullifies the Kenyan Presidential election 2023 on Monday?

That’s far from the end of the story.

A 🧵

1. It seems far more likely they will …

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kenyalaw.org/kenyalawblog/e…

… order a “fresh” election or a “run off” than give victory straight to Odinga.

This immediately creates a massive challenge: who will organise the necessary election?

Azimio will reject Chebukati, Kenya Kwanza will reject the 4 “rebel” commissioners.

To avoid deadlock …

… the Court will therefore need to make further rulings to provide some guidance as to how the IEBC should be managed.

Otherwise there is a big risk of returning to 2017, when the second election was just as problematic as the first …

How easily the IEBC can manage the …

… process will depend on whether the Court orders a fresh election or a second round run off.

2. A fresh election would be easier. In this case it is the same election again. So no need to change the ballot papers or the KIEMS kits. This is still a costly and big …

… logistical challenge, but it would be more straightforward than …

3. A run-off between the top two candidates, which would require printing a different ballot paper and so on, and would have a shorter timeframe (30 days) putting the IEBC under tremendous pressure

Either …

… way, a number of other issues will arise.

4. Azimio has made much of “Venezuelans” and accusations of foreign interference. As the IEBC - like most commissions - employs experts from around the world, this would be no different in another election.

Indeed, Smartmatic …

… will be key to the IEBC being able to hold another election so soon.

5. If the Court feels more substantial changes to procedure are warranted it could decide to give the IEBC more time to arrange the election - as in 2017.

But here we could run into other issues …

… most obviously, the current IEBC Chair’s term in office is due to expire early next year.

It would no doubt please Azimio leaders to push the next election date to this point so that Chebukati cannot preside, but given how long it takes someone to learn the role of Chair …

… this would mean either a) holding the next election with an inexperienced Chair and risk further controversy or b) a very long delay to the second election.

My sense is that the Court would want to avoid both eventualities and so will want the poll wrapped up this year …

… which means there is only so much time to play with in terms of making improvements to the system.

6. Another issue the Court may wish to express an opinion on is whether President Kenyatta would enjoy the full set of powers going into the next election or a reduced set …

… and it may choose to make a statement regarding the alleged use of state resources and chiefs in favour of Azimio candidates, though Courts generally wish to ensure it does not look like they are legislating and so are reluctant to be too prescriptive about how processes …

… should look.

7. Other important clarifications that will be necessary from the Court relate to the use of the manual register, and the process for the IEBC verifying and declaring the final result. This will be important to try and avoid repeat controversies to the first …

… election.

As in 2017, this is likely to mean that the Court will deliver a very long and complex judgement that will take some time to fully digest and fully understand.

See you on Monday …