Kenyan Politics, Judicial Activism And The Lessons For Africa, By Raymond Nkannebe

While millions of Kenyans formed long orderly queues outside polling stations across the country  on the 8th of August, 2017 to vote in the presidential and local elections, little did they know that such exercise—the peak of their constitutional right as citizens would become a somewhat exercise in futility as the judgment of the Supreme Court of Kenya last week Friday, made of it.

Following a petition submitted by Mr. Raila Odinga and his National Super Alliance Party (NASA), challenging the result of the election on the 18th of August, 2017, exactly a week after the Kenyan Independent Electoral and Boundaries Commission (IEBC) had announced the incumbent Uhuru Kenyatta as the winner of the keenly contested poll, a six man panel of the Kenyan Supreme Court led by the Chief Justice, David Maraga in a majority decision declared the result of the election, “invalid, null and void” after siding with the petitioner who had argued that the vote had been electronically manipulated to pave the way for the incumbent president; and thereafter ordered a rerun  within sixty (60) days.

It was doubtless, a bold decision coming from a Kenyan Judiciary notorious for corruption and which had been battling to redeem its battered image in recent times. The petition therefore presented a veritable window for the judiciary to seize and assert its independence and autonomy after it came under intense criticism for throwing out a similar petition filed by Mr. Odinga in 2013 following a largely rigged electoral process, and it left no one in any doubt about that.

The Petitioner, Mr. Raila Odinga, a former prime minister currently in his fourth run for the presidency following the decision of the court has been stunned to his marrows. In a brief remarks after the verdict was handed down, the taciturn septuagenarian captured his sentiments in the following words, “I am happy to be a Kenyan today. It is a historic day for the people of Kenya and by extension, the people of Africa. This is a precedent setting ruling, and the first in the history of African democratization for a ruling to be made by a court nullifying an irregular presidential election”.

The reaction of the incumbent president has been one of shock and anger. In an address to the nation, the drowsy-looking son of the founder of modern Kenya, Jomo Kenyatta, urged all Kenyans to be peaceful but not without taking a swipe at the Supreme Court justices by accusing them of going against the will of the millions of Kenyans whom he said queued and made their choices.

Kenyan politics, much like the politics of most developing nations, is notorious for thriving on violence usually fueled by the peculiar ethnic configuration of the East African Nation and usually exacerbated by the recurring cases of electoral malpractices at election periods engineered and masterminded by the incumbent through surrogates in order to foster the Kikuyi rule  and to prevent the emergence of a Kenyan president from the minority Luo ethnic group in a peculiar socio-political environment punctuated by the geo-politics of the Kikuyi and Luo speaking ethnic groups.

In 2007, following the general election which many observers were unanimous in their position that it was rigged against the unrelenting Odinga, in favour of then president , Mwai Kibaki, nearly 1,300 persons lost their lives when some of the supporters of Mr. Odinga went on a looting and killing spree in the ruling party strongholds and when gangs backed by ruling party officials fought back, the ensuing mayhem provoked a cesspool of violence that left more than a thousand people dead and caused thousands to flee their homes not forgetting the near shut down of the economy of the East African nation which thrives on transport from the Kenyan coast.

In 2013, sequel to the manifestly flawed presidential election that brought the incumbent Uhuru Kenyatta to the helm of affairs, pockets of violence erupted in many Kenyan towns and slums which were quickly quelled by security forces to avoid a repeat of the ugly experience of 2007. The just concluded 2017 election, is not excepted in this seemingly unending cycle of violence that pervade the Kenyan electoral experience.

Preliminary to the August 8th election, the brutally tortured corpse of the electoral commission I.T manager, Mr. Chris Msando was found in some bushes outside Nairobi in what appeared to be a politically orchestrated killing unconnected with  the just voided election. Also on the day of Kenyatta’s ‘victory’, local and international media reported spontaneous protests and sporadic lootings in Odinga strongholds. Days after the result of the now voided election was announced, reports of special police units cracking down on Odinga’s strongholds on the trumped up charges of inciting violence left no fewer than 24 persons dead. In the lakeside city of Kisumu, international media reported house to house beating and shooting of people with no fewer than 10 deaths recorded and several hundred others beaten and/or escaping with gunshot wounds. There was a particular pensive report of a nine-year-old hit by a stray bullet in Nairobi while playing on her balcony also the story of a six-months-old beaten to death in her own house while in her mother’s arms. And the reports of five corpses discovered floating in Lake Victoria with at least one of them with gunshot wounds all go to substantiate the fact that the internal politics of Kenya, has been one characterized by bloodletting carried out by government backed security forces and ethnic militias on either side of the two major ethnic groups that make up the Nation popular for its huge wildlife and tourist credentials.

The crux of the petition filed by Mr. Odinga bordered on a number of complaints to wit: that nearly half of all the votes cast had been tampered with; that NASA agents who were entitled by law to observe the voting and counting had been thrown out of polling stations in Kenyatta strongholds and that secret unofficial polling stations had transmitted fake votes.

Whereas the United States and Kenya’s other donors had invested some $24 million in an electronic tallying system designed to prevent interference and improve the authenticity of results by scanning and sending the results of votes collected across all polling stations after representatives of all political parties have signed a form known as 34A certifying the result collected from count, to the electoral commission headquarters in Nairobi, the breakdown of the system across all the polling stations in controversial circumstances  necessitated the sending of all votes collected at polling stations vide  text message to the electoral body for collation; a situation which members of Odinga’s party insist, laid the foundation for the doctoring of results received across polling stations and upon which the Kenyan apex Court reached its decision.

But all the foregoing couldn’t have been mere coincidences. To be sure, there were ominous signs that “something weird was going on”, as Helen Epsten of the The New York Review put it in her article entitled, Kenya: The Election and the Cover Up. A month earlier, Kenya’s electoral commission had contracted a Dubai based publication firm, Ghurair, to print ballot papers for the election but after newspaper reports linked the company to Kenyatta, a Court order at the behest of the Odinga camp mandated the electoral commission to use a different firm; an order which was flagrantly disobeyed by the electoral commission citing exigencies of time.

Earlier, the accounting giants KPMG had reported that more than 2 million dead  people might still be registered as voters and might be used as “ghost-votes” to boost the chances of the ruling party. But all of these were rebuffed and dismissed by the ruling party and curiously, the head of the US Carter based Observer group- John Kerry who dismissed the concerns by quipping that, “the people who voted were alive. I didn’t see any dead people walking”. Exactly a week before the election, a team of United States and Canadian advisers who had been helping Odinga’s campaign  set up a parallel system to verify the vote counting were arrested at gun point and deported. In between, Odinga’s spokesperson was reported to have fled the country citing death threats. And finally, the ransacking of the NASA vote counting office among other untoward acts all pointed to the fact that elements within the ruling party were preparing for a do-or-die slugfest.

It is thus against the backdrop of the aforesaid, that one would properly contextualize and appreciate the import of the decision of the Kenyan Supreme Court the other day. It is one decision that would forever disrupt the political landscape in Kenya and send the message across to the political class for whom the ballot, is a franchise of sorts, that the judiciary would no longer endorse their hatchet job. By rising like a phoenix to assert the independence of the Kenyan judiciary in a country notorious for a compromised justice system, the Supreme Court has wittingly raised the ante of electoral politics in Kenya and consolidated the democratic experience in the East African Nation.

Having said that, the decision further raises concerns for election observer groups all over the world who in most cases are economical with the truth in their assessment of elections in most African nations for reasons one is unable to wrap their hands around. When kenya’s electoral commission announced on the 11th of August that president Uhuru Kenyatta had won another five-year term with over 54% of the vote, observer teams from the African Union, the European Union and the highly respected US-based Carter Centre, led by former Secretary of State John Kerry, commended the electoral process and said they had seen no evidence of significant fraud; a rhetoric often chorused in every area of assignment. Shortly before jetting off Kenya, John Kerry was reported to have praised the Kenyan electoral commission for having done “an extraordinary job to ensure that Kenya has a free, fair and credible poll”. He then urged the opposition to “get over it and move on”.

Now, statements of this kind go to vindicate the allegations of critics of observer groups who question the neutrality of some of the much respected election observer groups who they accuse of superintending over a consistent strategy usually deployed by western backed NGOs and observer groups who for one vested interest or the other, love to meddle in the politics of African and other developing nations. In 2007, despite the widespread irregularities that characterized the election that brought Mwai Kibaki to power, the Bush-led White House was quick to congratulate him while hailing the process that brought him on board.

It has become a singsong of sorts for observer groups to hail nearly every electoral process off Africa under the now too familiar phraseology: substantial compliance; and then saunter back to their domains to write a report that fits into the bias of their respective organizations—emboldened by the fact that the judiciary, corrupt as it were, would never upturn the result endorsed by them earlier on.

The latest events in Kenya however, it is the expectation of this writer, would rub off on these observer groups. Political expediency and the much vaunted need to preserve the Public Peace as it were, should not be used as a fodder to perpetuate electoral misnomer in developing nations. Therefore, going forward, election observer groups should discharge their duties with the highest sense of responsibility and professionalism eschewing every sentiments and/or primordial considerations. To be an observer after all, is to say things as they are, and not to condescend into the optics of same to serve the ends of “political correctness”.

And so where does the developments in Kenya leave Nigeria, nay African Judiciary? While I must concede that the Supreme Court in Nigeria have in a number of cases shown judicial courage by upsetting the political contrivance of elements within the Nigerian ruling class that attempted a mockery of the Nigerian constitution through earth breaking decisions that has served to jumpstart our electoral jurisprudence, such efforts have only found expression at the gubernatorial petitions, and when they did, were often belated.

In 2007, a certain president of this country voiced out to the consternation of the civilized world, that the election which brought him to power was characterized by widespread irregularities and electoral malfeasance. He went as far as making Electoral Reforms one of the planks of his administration. Yet, the petition filed in protest of the election never saw the light of judicial victory. What does this speak of our electoral jurisprudence? And what is the opportunity cost in terms of the Independence of the Judiciary here? These questions obviously are food for thought.

It is not just the verdict of the Kenyan Supreme Court simpliciter that has left the whole world stunned; I dare say that it is also the dispatch with which the petition was treated that has served to make all the difference. My very modest knowledge of arithmetic tells me that within the date when the petition was filed and the day the verdict was handed down, is only but 14 days. Such a record time frame can only be made possible by a judicial process that frowns completely at the resort to legal gymnastics and undue technicalities that often plant landmines on the judicial runway and throw spanners to the wheels of justice.

The Nigerian and indeed, the judiciary in Africa as a whole have a lot of lessons to learn from this uncommon display of judicial responsiveness by the Kenyan apex Court. Nothing could be more frustrating than a judicial process that travels at a snail-speed at the cost of justice. I therefore urge the judiciary in countries like Zimbabwe, Uganda, South Africa, Angola, Cameroon among others, to rise up to the challenges of the moment by stamping their feet to the ground in their respective jurisdictions to drive home the message of independence of the Judiciary through similar edge-cutting decisions that strike below the belt of their respective executive arm.

While the full written decision of the Kenyan apex Court is awaited, side by side the ordered rerun, it is our fervent expectation that Kenyans would continue to keep the peace that they have kept thus far, in the realization that whichever way the pendulum swings, their interest, as citizens must remain paramount.

And as the 55-years old Uhuru Kenyatta and his 72 years old arch rival, Raila Odinga prepare for the final showdown of an ethnic feud that has spanned over half of a century between the two political families, it is the political jinx of sorts in the political affairs of the East African power hub broken by the Supreme Court last Friday, that would be the ultimate victory for Kenya and Kenyans whichever the ballot goes at the rerun polls.


Nkannebe Raymond, a lawyer and public affairs commentator wrote in from Enugu. Comments and reactions to raymondnkannebe@gmail.com

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