Opposition "resistance movement" unlikely to mobilise effective legislative boycott or successfully challenge Kenyan president's re-election in court

Kenyan President Uhuru Kenyatta was re-elected yesterday (31 October) following a re-run election completed on 26 October. The previous election was annulled owing to procedural irregularities that breached constitutional requirements for a "valid" and "verifiable" process. Opposition National Super Alliance (NASA) leader Raila Odinga announced he would establish a "national resistance movement" to push for electoral reforms facilitating a fresh presidential election within 90 days.

Significance: Odinga's new platform probably does not intend to lodge a credible legal challenge against the election process, however. In principle, the Independent Electoral and Boundaries Commission met virtually all of the Supreme Court's recommendations provided on 1 September, when the August election was annulled. Consequently, the remaining legal avenue would be to highlight the commission's failure to conduct voting in 25 of the 290 constituencies, most of which are in Odinga's ethnic-Luo strongholds. However, the Election Act does authorise declaration of a winner when a "breach of peace" has prevented voting in constituencies that will not alter the final result. Given that Odinga's allies publicly supported protests that disrupted voting in these regions, any such petition would be rejected. Separate to this, an outstanding legal petition lodged by opposition-affiliated activist Okiya Omtatah to nullify Kenyatta's re-election will be adjudicated by the Supreme Court on 10 November. This is likely to be rejected. Such an outcome was indicated on 23 October. The Court of Appeal upheld the decision to reject a re-run in favour of the "over-riding public interest" to commence the election within a 60-day time limit, as stipulated by the constitution. This was despite the court's ruling that the appointment of new constituency returning officers was illegal. Odinga will, therefore, probably now look to boycott the National Assembly. Policy paralysis is unlikely. This is because the NASA coalition is likely to fracture along ethnic and regional alliances. If leaders from the Ukambani region – which represents the ethnic-Kamba – join the boycott, then Odinga is likely to continue leading NASA until late 2018. Even so, the boycott is unlikely to prove effective, because the ruling Jubilee alliance controls a legislative majority (see Kenya: 26 October 2017: Re-run Kenyan election occurs with minor disruption, indicating splits emerging within opposition coalition, reducing policy paralysis).