Over-Turn Election Put the Supreme Court on Trial

ISSUE NO. 30, OCTOBER 2017 OVER-TURN ELECTION PUT THE SUPREME COURT ON TRIAL Peter Kagwanja Kenya has made history. Its Supreme Court and a run-off on November 16. In Austria, made a rare ruling, annulling the re-election of where the presidential elections took place on President Uhuru Kenyatta in the August 8, April 24, 2016, the Supreme Court annulled the 2018 elections with a huge margin of 1.4 million results of a second-round run-off on May 22, votes. Blissfully, the ruling affirms Kenya as a 2016 paving the way for a revote on December new bona fide liberal democracy. But it also 4, 2016. reveals creeping ideological and jurisprudential divisions in our courts, likely to undermine This is the second ruling by the Supreme public perception of the impartiality of the Court, created by the 2010 constitution. The judiciary, exposing it to potential reprisals by first was a unanimous affirmation of the results sections of aggrieved political class. of the 2013 presidential elections. In contrast, the 2017 ruling was by a simple majority with Kenya becomes the first country in Africa, and strongly dissenting opinions. exceptionally very few in recent history, where a Supreme Court has over-turned officially Of the six judges involved, four—Chief Justice declared results of a presidential election. David Maraga, his deputy Lady Justice Philomena Mwilu, Justice Smokin Wanjala and It joins Maldive and Austria where the supreme Justice Isaac Lenaola—were of the opinion courts have recently overturned the will of the that ‘irregularities’ and ‘illegalities’ affected the people on legal and administrative conduct of the polls. technicalities. “Presidential election was not conducted in accordance to the Constitution. The ruling has put the Supreme Court in trial. It The results are null and void," Chief Justice has revealed serious ideological and Maraga declared. jurisprudential divides likely to bedevil the judiciary. In Maldive Islands in the Indian Ocean, the Supreme Court nullified the results of The ruling hit Jubilee like a jolt from the blues. presidential elections held on September 7, However, had the the governing party pundits 2013, leading to a repeat poll on November 9 invested in unearthing the ideological schisms API Research Notes in the supreme Court, they would have seen Moreover, for a while, the decision has the ruling coming. restored the stability of the Kenyan system. It has helped demobilize forces advocating for For example, Chief Justice Maraga’s post-election violence. In its immediate puritanical view of the democratic electoral aftermath, the ruling has drowned open calls to process is neither new nor private. It is patently violence by sections of human rights public. extremists in civil society, who threatened that Kenya would burn if Kenyatta was sworn in as This became evident in the high-profile case President and even publicly advocated for the (Joho v Nyange and another) of 2008, where break-up of Kenya into ethnic “republics” along he declared that: “The Law is therefore clear as the lines of former Yugoslavia. to when an election can be nullified. An election will be nullified if it is not conducted NASA’s own confidence in courts has been substantially in accordance with the as to the restored. In 2007, Odinga declined to seek elections. It will also be nullified, even though it redress for his grievances in court, instead is conducted substantially according to the law calling its supporters to the streets. This as to the elections, if there are errors or plunged the country into a cataclysmic violence mistakes in conducting it which, however that pushed the country to the brink of state trivial, are found to have affected the results of failure. In 2017, NASA had declared that it the elections.” would not to go to court but appeal to the people. However trivial, errors and mistakes matter to the Supreme Court puritans, and trivial Inadvertently, perceptions of the ruling as “irregularities” and “illegalities” are sufficient reflection a desire by the supreme Court to reason to overturn the will of the people. assert itself over the Executive in a political Elections must adherence 100 percent to the style has thrust the Court into tornado path of process and the letter of the law. The will of the a vicious political clash of rival camps of the people and political consequences of court political class. Jubilee argued that “six rulings are secondary. individuals” have ousted the will of over 45 million Kenyans. Its pundits view the On contrast are those judges valorizing the will consequences of the ruling as a ‘civilian coup’. of the people and concerned with the larger picture of democratic election as imperfect and The court has, however, only delivered half work in progress. In this regard, one of the victory to Odinga. The best case scenario dissenting judges, Lady Justice Njoki Ndung’u, would have been to adduce evidence and argued that the irregularities and illegalities declare him the winner of the 2017 Presidential were not sufficient to change the outcomes or contest. Indeed, Odinga had declared himself to warrant the overturning of the will of the winner with slightly 300,000 votes! people expressed in the voting. The second, Justice Jackton Ojwang argued that “no iota of Admittedly, a new election is a burden to evidence to merit the overturning of the NASA. As Jubilee, NASA has to mobilizing election. huge finances for campaigns at a short notice. Notably, NASA principals—with the except Perhaps unintendedly, the ruling confirms Senator Moses Wetangula—are literally Kenya’s constitutional order and asserts the jobless. rule of law. Although disagreeing with the ruling, President Kenyatta said he would One scenario from a repeat election is an respect it. Opposition leader and petitioner, Odinga victory in the Presidential contest. Raila Odinga hailed the ruling as a “historic Despite the reprieve from the Supreme Court, victory for Kenya.” all odds are stuck against NASA which has lost Parliament, Senate, Women representatives, API Research Notes Governors, and Members of County the Jubilee majority. But Jubilee has ruled out Assemblies to Jubilee. Out-numbered, out- any “nusu-Mkate” (power-sharing gunned and out-there, “President Odinga” government), and hit the campaign trails cannot govern! starting with Nairobi. Kenyans should belt up, we are headed for a rough 60 days patch. The best case scenario for Odinga is a negotiated power-sharing arrangement with ©Africa Policy Institute, October 2017 Professor Peter Kagwanja is a former Government adviser and currently the Chief executive of Africa Policy Institute and Visiting Scholar at the Institute of Diplomacy and International Studies, University of Nairobi.The article was previously published under the title, “Kenya’s 2017 electoral impasse a severe test to liberal peace-building”, Sunday Nation, (Nairobi), October 1, 2017. API Research Notes About API Research Notes API Research Notes Series publishes scientifically valid research outputs that cannot be considered as full research or methodology articles. Its aim is to provide a forum for sharing data, useful information and perspectives on topical issues of concern to the policy and research communities. Articles published under this series cut across disciplines, and include some short articles or opinion pieces that have already been published by the experts of the Africa Policy Institute. Some are brief publications, updates to previous work, abridged versions of research agendas or concept notes or brief reports of policy forums. API Research Notes .

Load more