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Not yet Uhuru for Kenyatta as Kenya’s Supreme Court annuls his election

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• Nigerian Lawyers Hail Decision, Charge Nigeria To Emulate Feat
The Supreme Court in Kenya yesterday declared the presidential elections held on August 8, 2017 as null and avoid and ruled that a re-run be conducted within 60 days.

According to the four of the six Justices of the court, the presidential election, which saw the re-election of President Uhuru Kenyatta for a second term, was not conducted in accordance with the Kenyan constitution.

Two Judges dissented.

In Nigeria, lawyers have described the judgment as victory for constitutional democracy, urging Nigeria’s judiciary to emulate the courage of Kenyan Justices.

Speaking with The Guardian, Chief Emeka Ngige (SAN) said the judgment is good for our nascent democracy in Africa as a whole.

The decision, he said, will now be cited as a precedent that any election, be it presidential or councillorship election, which was not conducted in accordance with the law, is liable to be nullified.

He said: “There was an opportunity for the Supreme Court of Nigeria to make such bold decision, but it was missed in 2007, when the majority of the Justices upheld a highly-flawed election conducted by the Independent National Electoral Commission (INEC) under Prof Maurice Iwu.

“The late President Umaru Musa Yar’Adua, the beneficiary of the rigged election, acknowledged same in his national broadcast and set up the Justice Muhammadu Uwais Election Reform Committee.

“Till date, the two unfortunate decisions in BUHARI VS INEC and ATIKU ABUBAKAR VS YAR’ADUA are still being cited as authorities by our courts to save rigged elections.

“So, I hail the Justices of the Kenyan Supreme Court for their courage and boldness in nullifying the rigged Kenyan election. Heavens will not fall.

“The lesson for Nigeria is that we must be very cautious in the use of electronic voting for our 2019 election. It is open to manipulation, as was witnessed in Kenya and in the last Nigeria Bar Association (NBA) national election.”

Another lawyer, Ifeoha Azikiwe, said Kenya has set an unbeatable standard for the judiciary in Africa, maintaining that there must be a departure from the past.

She said if it were to be in Nigeria, the case would have lingered until the incumbent completed his four or eight years in office or would eventually be declared a winner.

“It is a big challenge to the Bench and Bar in Nigeria, who would have used legal technicalities to reverse the case.

“Looking back at history, has the Kenyattas honestly won any election in Kenya?  It has always been a “landslide victory” for the ruling party. The country has always had highly controversial elections.

“Thank God there is one Raila Odinga that gives hope to the opposition in Africa,” she stated.

Abuja-based legal practitioner, Abubakar Sani, said the judgment, which he described as salutary and most welcome, is a breath of fresh air and shows that there is hope for Africa.

“It is a sign that Africa’s legal institutions are coming of age. They are becoming fearless, bold and willing to assert their independence more than ever before.

“It is good news and gives one much to cheer about. It is certainly worth celebrating,” he stressed.

Also, Tony Odiadi, said it is a good development showing the full capacity of the judicial arm to intervene and decide whether any election was in compliance with the law, as stated.

According to him, a precedent of this nature will surely stand in good stead to enable the judiciary in other countries to be so decisive.

He stated: “It must be mentioned that the Nigerian judiciary has not, through its more recent history, intervened in any manner as radical as this Kenyan case. Not in the Awolowo vs. Shagari and Buhari vs. Yar’Adua cases have judicial power been expressed of this magnitude.

“The decisions in the Amaechi, Obi, Ladoja, etc cases are more of pronouncements on interpretations where states were in issue, not the presidential election.

“It shows a full measure of judicial confidence that will serve the purpose of facilitating compliance with extant provisions of the law.”

Odiadi noted that many issues dog elections in Nigeria, ranging from pre-election and post-election matters, violence at the polls, qualification to stand election, double voting, underage voting, wrong collation of votes and others, all of which are capable of leading to voiding of votes and elections, but the courts place high thresholds for petitioners.

“We must congratulate Kenya’s Supreme Court for this judicial courage. It was in the Atiku cases against INEC on qualification to contest election that the Nigerian judiciary showed equal masculinity in holding that the Vice President’s loyalty is to the constitution and not to the person of the President,” he stated.

Similarly, Solomon Ukhuegbe, said Kenya has done so well in a few constitutional cases, aside from election petitions.

Ukhuegbe noted that election appeals seem to drag forever in Nigeria because governorship election petitions, for example, go through two appeals and pre-election cases have no time limit and often drag on for years.

“In Kenya, the presidential election petition went straight to the Supreme Court and it seems most of the proceedings was documentary. In Nigeria, in contrast, the Supreme Court is never a court of first instance in such matters.

“Secondly, our election jurisprudence requires hundreds of witnesses in order to prove malpractice in practically every polling station. Even with the process of having witnesses adopt their written statements, it is still very time-consuming with cross examination and all that,” he stated.

According to Chief Sebastine Hon (SAN): “The decision is salutary and most welcome. I must congratulate the Kenyan people in particular and Africans in general for this feat.

“Remember, the post-election violence was so determined and seemingly non-stoppable that we watchers knew something grave had gone wrong with the elections.

“Recent happenings on the political landscape of Africa, including the defeat of a sitting President in Nigeria, Dr. Goodluck Jonathan, and his voluntary concession of defeat, all point to the fact that there is a positive upswing in African political thinking.”

“And with the pronouncement of the Kenyan Supreme Court, I think Africans are beginning to think out of the box now. The trend is most welcome and should spread like wild Harmattan fire across Africa.”

“Wake me up in the middle of the night, I will still be celebrating this victory for not just democracy, but also the rule of law in Africa.

“It is an emerging trend that must be supported by all persons of good will.”

On his part, Solomon Ukhuegbe, said: “We need to remember that until the present 2010 Constitution, the Kenyan judiciary ranked amongst the most subservient in Africa.

“There was almost no judicial decision against the government down to the time of former President Daniel Arap Moi and only a trickle until a mere seven years ago. The 2010 Constitution entrenched an independent judiciary and ensured it was well funded.

“The Judges and Magistrates Vetting Board was instituted to screen all serving judicial officers and get rid of unfit persons. Probably the most important factor in the transformation of the Kenyan judiciary, however, was the appointment of a scholar, civil rights campaigner and activist, Dr. Willy Mutunga, as Chief Justice in 2011.

“Almost from that moment, the judiciary shed its reticence toga and opened an activist era. The current Chief Justice, David Maraga, who presided over the election case, succeeded Mutunga in June 2016.”

He continued: “The court has yet to give its reasons, so we don’t quite know yet what specifically it found wrong with the election process. However, the previous (2013) elections results, in which Kenyatta beat Odinga by a mere 0.7 per cent, was upheld by the Supreme Court, with Mutunga presiding.

“This time, Kenyatta beat Odinga by roughly 10 per cent (54.27% to 44.74%) and practically all observers were satisfied. It is possible that there may have been some legal lapses, rather than electoral fraud. We have to wait for the court to issue its reasons to know that for sure.

“One thing is clear though, an electoral alliance (Jubilee Alliance) between the Kikuyu and the Kalenjin (Kenyatta and Ruto, respectively) is electorally unbeatable in the context of Kenya’s ethnic politics.

“Kikuyu and Kalenjin communities have each produced Kenyan Presidents- Odinga’s Lou community has not.

“Anyone that looks closely at the contemporary electoral jurisprudence of Nigeria will probably conclude that the barrier to overturning a presidential election by the Supreme Court of Nigeria is not as much judicial courage, as it is the almost insurmountable burden of proof of substantial electoral irregularity (polling-station-by-polling-station proof). This is not sustainable beyond a legislative district election.

“When last did the Supreme Court overturn or sustain the overturning of a governorship election?

“In conclusion, the decision of the Kenyan Supreme Court is a milestone in African constitutionalism, but a better day will come when elections will be decided conclusively at the polling stations and not in courtrooms.

“That is the point where constitutionalism shakes hand with democracy. We will be better for it. What happened today (yesterday) is only a half-loaf meal. It nourishes all right, but a full loaf is more satisfying.”

The Committee for the Protection of Peoples Mandate (CPPM) also commended the Kenyan Supreme Court for upholding the tenets of constitutionalism and reaffirming the people’s faith in democracy and the rule of law.

“We regard this judgment as a victory for constitutional democracy, which must be commended and emulated by other African countries for the peace, progress and development of the continent.

“We commend, most sincerely, the opposition party, who though aggrieved with the outcome of the election, didn’t take the laws into its hands, but explored the constitutional and democratic option of approaching the courts to seek justice, which has been dispensed with,” the group said in a statement signed by its Executive Chairman, Nelson Ekujumi.

The judgment of the court, the group said, represents a new chapter in the democratic process in Africa, because it signposts the independence, doggedness and commitment of the Kenyan judiciary to the constitution.

“The judgment should also serve as a wake-up call to political parties in Africa, who lose elections, to realise that the courts or the judiciary remains the only civilised and democratic medium to get justice, based on presentation of incontrovertible facts and not just to cry foul to raise tension and heat up the polity.

“As we celebrate with the Kenya people for setting a new standard with regards to constitutional democracy, may we encourage and admonish them to continue to keep faith with democracy by being eternally vigilant in preparation for the re-run presidential election and maintain the peace before, during and after the election,” the group counselled.

The ruling favoured Raila Odinga, head of the country’s main opposition, who had challenged the electoral commission’s announcement of Kenyatta as the winner last month.

The court ruled that the electoral commission “failed, neglected or refused to conduct the presidential election in a manner consistent with the dictates of the constitution.”

The election was marred by violence, after Odinga rejected the result, citing irregularities and illegalities, while local and international observers, including immediate past United States Secretary of State, John Kerry, endorsed the outcome.

Many voters in the west of Kenya, Odinga’s stronghold, and along the coast, where there is also traditionally large support for the opposition, felt neglected and shut out of power by the central government.

Odinga has contested the last three elections and lost each time, claiming each time that rigging marred the votes.

In 2013, the Supreme Court dismissed his petition, but this time, his team focused on proving that the process for tallying and transmitting results was flawed, rather than proving how much of the vote was rigged.

The Kenyatta and Odinga families have been known rivals in Kenya’s politics. Uhuru’s father, the late President Jomo Kenyatta, had always edged out Raila’s father, the late Odinga Odinga, in the Kenyan politics.



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