Weighty lessons from Kenya’s election

Although shocking and unprecedented, the landmark judgment of the Kenyan Supreme Court, which nullified the re-election of President Uhuru Kenyatta for widespread irregularities in the transmission of results, was a courageous gesture with far-reaching implication for Africa’s growing democracy.

The country’s Chief Justice, David Maraga said the August 8, 2017 election had not been “conducted in accordance with the constitution” and declared it “invalid, null and void.” He said the verdict was backed by four of the six Supreme Court judges.The court ruling was a historic, judicial precedent, for it was the first time a sitting African president had had his re-election constitutionally overturned, and the decision respected.

In a political culture wherein government appointees are often seen as supporters of the powers that be, the judgment re-affirmed the sanctity of the rule of law and rekindled the majesty of democracy. Everywhere in Africa, in far-flung African diaspora as Guyana, and even amongst the supposedly impeccable community of international election observers, lessons are being drawn from this precedent in electoral justice. And for Nigeria, where the image of the judiciary has been markedly smeared by allegations of widespread corruption and moral decadence, there are invaluable lessons.

Just like many African countries where sitting presidents see their re-election as a walkover, Kenyans had gone to the polls on August 8 with the thinking that the election would be business as usual. Expectedly, the official results as announced by the Kenyan Elections Commission, credited President Uhuru Kenyatta’s Jubilee Party with 54.3 per cent of the votes cast, while Raila Odinga’s National Super Alliance got 44.8 per cent. Following declaration of results, Odinga’s party had challenged the results, citing widespread irregularities and electoral malpractice, despite the positive remark of international election observers. The opposition subsequently filed a petition and called for fresh elections to be held.

Two weeks later, the elections’ petition was heard, and the apex court comprising six justices nullified the elections results. The Chief Justice who read the ruling, ordering fresh elections within 60 days, stated inter alia: “The presidential election was not conducted in accordance with the constitution, rendering the declared results invalid, null and void.” Before long, both contestants for the presidential seat had begun to make caustic comments about the judgment.

Notwithstanding the uncomplimentary reactions of the two major candidates and coincidentally sons of Kenya’s foremost nationalists, there are vital lessons politicians, electoral workers and the judiciary in emerging democracies can learn from this Supreme Court’s verdict.

First, the jurisprudential significance from Kenya to Africa is that a very strong judiciary is an essential instrument for democracy to thrive. And in the same vein, a good constitutional dispensation can safeguard the independence of the Judiciary. The fundamental quality demonstrated by the six-member bench was the independence of the judiciary. That development too enhances the finesse in separation of powers in a democracy. What is more, that is how institutions are strengthened to make democracy safe in any jurisdiction.

This lesson is especially true of Nigeria where electoral disputes often lead to truncation of the democratic process. In Nigeria, the world’s most populous black nation and Africa’s strongest economy, electoral irregularities have become part of its reproachful electoral processes. The moral import of this ruling is that the goal of an election, namely to get someone into an office or position through popular votes, is no more important as the means, namely, the integrity of the process itself.

As one commentator remarked: “Through their ruling, they have asserted that the integrity of a process matters, even if uncertainty follows. They have resisted the temptation to opt for political instability over electoral justice. Besides, they have sent a signal to the continent’s leaders that the power of the executive is not absolute. The lesson here is that there is nothing like a disparity too small to be allowed to go unnoticed in an election.”

Just like Kenya, Nigeria is ethnically polarized, and also has a tendency to replay Kenya’s election scenario as it has always done. But the food for thought for Nigeria is captured by this rhetorical question: Can Nigeria have a judiciary so remarkable that it can give a verdict against the government of the day?

Second, the eagle-eye scrutiny of the petition by the Supreme Court was facilitated by vigilant vote-trailing. Just as it is not enough for the electorate to vote, it is also not a sufficient reason to declare an election free and fair because foreign observers say so. Votes must be seen to count. The lesson here is that people must devise alternative scientific and credible means to view what takes place on site, especially when, as a result of ethnic tension, long political rivalry, people cannot trust the electoral machinery to safeguard the integrity of the electoral process.

Apart from the courage of the judges, the speed with which justice was delivered was another exercise worthy of commendation. Candidate Odinga filed his election petition at the apex court and it took only two weeks to settle such a high profile election petition. That is remarkable as in some African countries, justice can be delayed and thus denied.

This is a lesson in expeditious dispensation of justice for Nigeria. Until recently, Nigerians have been witnesses to long election tribunals, with ignoble moral consequences. Even though the Electoral Act has addressed this aspect of the electoral process, our authorities would do well to move faster.

The moral force of the historic ruling could be seen too in the big embarrassment it caused international observers, like the Carter Center team led by former U.S. Secretary of State John Kerry, the African Union team led by former South African President Thabo Mbeki, the Commonwealth team led by former Ghanaian President John Mahama. The indictment of the Kenyan Elections Commission is another sore point.

All told, the ruling party and the opposition should maintain the respect the landmark judgment deserves. To undermine the sanctity of the law is an invitation to anarchy. It is for this reason that President Kenyatta’s consistent, disparaging remarks about the judgment and the judges are unfortunate. His uncouth vituperation is a glaring example of executive lawlessness. If the president who nominated candidates for the judiciary is throwing stones at the same Temple of Justice, it is not exemplary for Africa. In the same vein, it is morally wrong for candidate Odinga, a former prime minister, to put the judiciary in prejudicial position through his uncomplimentary comments.

Therefore, we hoped that for the sake of democratic culture in Africa, both contestants, who incidentally are offspring of Jomo Kenyatta Kenya’s first president, and Jaramogi Oginga Odinga, Kenya’s first Vice-President, would respect the outcome of the October 17 re-run election and save Kenya and East Africa from avoidable destruction of lives and property.