Legal Studies, Vol. 29 No. 1, March 2009, pp. 127–158 DOI: 10.1111/j.1748-121X.2008.00110.x Consequences of a flawed presidential election Edwin Odhiambo Abuya* Senior Lecturer, Nairobi University School of Law This paper evaluates the impact of a substandard presidential election. Using Kenya as a case study, it reviews the 2007 vote. The paper contends that there is a link between free and fair elections and the enjoyment of human rights. It argues that in order for states in Africa to walk the (desired) democratic path, sitting governments must comply with internationally recognised standards. While focusing on the violence that rocked the country, the paper analyses the causes and implications of the much-disputed presidential poll. Also evaluated is the role the international community can play in resolving a crisis. The paper concludes by asserting that a rule of law culture must be embraced if human rights and democracy are to flourish in Africa. O God of all creation, Bless this our land and nation. Justice be our shield and defender, May we dwell in unity, Peace and liberty. Plenty be found within our borders.1 INTRODUCTION In any presidential election, the stakes are usually high. And, for many candidates and their supporters, assuming office means gaining access to power and, ultimately, control over important resources. In some African states, having one of your ‘own’ persons in power can determine the level of development in your region. Where resources are limited, and regions depressed, it makes the contest for political seats particularly important. Elections can, therefore, provide an opportunity to remove lawfully a person or party from government, which the majority believes has not delivered, and replace * Some of the issues this paper evaluates were explored in a paper that the author presented at a panel discussion on Recent Events in Kenya, which the Global African Studies Program at Seattle University in the USA organised in January 2008. The author would like to thank Femi Taiwo for organising the session. Thanks are also due to the co-presenters and participants in the discussion session for sharing their thoughts as well as two anonymous referees for their helpful comments on earlier drafts. Thanks to Terri Drage for her outstanding editorial assistance. A note of gratitude goes to Anthony Munene, Omollo Gaya and David Majanja for their assistance with some of the sources that are referred in this paper. This paper is dedicated to the Panel of Imminent Persons who rescued Kenya from collapse. The author can be contacted via email: [email protected]. 1. National Anthem of Kenya. © 2009 The Author. Journal Compilation © 2009 The Society of Legal Scholars. Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA 128 Legal Studies, Vol. 29 No. 1 them with one that voters believe will meet their needs. Generally speaking, individuals participate in elections in order to elect or re-elect into office a government which they believe will improve, in particular, their economic situation. Whether or not a candidate ultimately delivers once he or she is in office is another inquiry. Against this background, many opposition parties base their campaigns upon a platform of change. This approach is usually aimed at countering the record of achievement that sitting governments put forward to justify seeking re-election. In Zimbabwe, for example, the name of the main opposition party in the 2008 elections – Movement for Democratic Change – makes this point. Likewise, in the USA, Barrack Obama (wuod Alego), the first African-American president of the USA, promised to bring real change if elected into office. In order to meet internationally acceptable standards, an objective electoral process must meet certain criteria.2 First, every eligible voter must have the opportunity to participate in the process. Secondly, an independent body should conduct the elec- tions. Thirdly, each vote must carry equal weight. Further, the process must be transparent. Moreover, the results should reflect the number of votes that have been cast. Lastly, dissatisfied candidates must be given an opportunity to challenge the results before independent courts and/or tribunals. Absent these key ingredients, it is difficult for any election to be deemed free and fair. Considering the ‘fundamental’ magnitude of a presidential election, to borrow the words of Thomas Hobbes3 and Justice Breyer,4 it is quite risky to interfere intention- ally with this poll. As the post-2007 election events in Kenya demonstrate, flawed presidential elections can have tragic consequences. Following the announcement of the much-disputed election results, the world witnessed an outbreak of riots and violence in parts of the country, particularly in opposition strong-hold areas. Kenya’s reputation, as an oasis of peace in a continent plagued by violence, has since been shattered. The violence caused considerable suffering to thousands of people. Within days of the announcement of the presidential result, close to 500,000 people were forced to flee from their homes.5 Of these, some 12,000 sought shelter in the neigh- bouring state of Uganda as refugees.6 It is estimated that 1100 people lost their lives in the post-election violence.7 Property worth billions of shillings was also destroyed. Using Kenya as a case study, this paper reviews the 2007 presidential election. It contends that there is a link between free and fair elections and the protection of human rights. The paper argues that in order for states in Africa to walk the (desired) 2. For these standards, see International Covenant on Civil and Political Rights, GA Res 2200(XXI) UN GAOR, 21st Sess, Supp No 16 at 52, UN Doc A/6316 (1966), 999 UNTS 171 (entered into force 23 March 1976) (ICCPR), Arts 2(3) and 25; Universal Declaration of Human Rights, UNGA Res 217 A, GAOR, 3d Sess, 183 plen Mtg at 22, UN Doc A/810 (1948) (UDHR), Arts 8 and 21. 3. T Hobbes Leviathan (Sydney: Broadview Press, 2002) p 215. 4. See George Bush v Albert Gore 531 US 98 (2000) at 153 (Stevens and Ginsburg JJ concurring). 5. Kenya Red Cross Society Electoral Violence: Kenya Red Cross Issues Revised Appeal, available at http://www.kenyaredcross.org/highlights.php?newsid=62&subcat=1. 6. UNHCR 12,000 Kenyan Refugees Now in Uganda, available at http://www.unhcr.org/ news/NEWS/47a85a4e2.html. 7. Commission of Inquiry into the Post-Election Violence Report of the Commission of Inquiry into the Post-Election Violence Experienced in Kenya after the General Elections held on 27th December 2007 (Waki Commission), p 308, available at http://www.dialoguekenya.org/ docs/PEV%20Report.pdf. © 2009 The Author. Journal Compilation © 2009 The Society of Legal Scholars Consequences of a flawed presidential election 129 democratic path, sitting governments must comply with internationally recognised standards on free and fair elections. Otherwise, as the Kenyan experience shows, the consequences of a flawed presidential election can be tragic and far reaching. To gain an understanding of current events, section two discusses key political events in the lead up to the 2007 presidential election. The cause of the violence that erupted in Kenya is discussed in section three. The remainder of the paper addresses the impact of the election both domestically and internationally. Although there are many issues that could be discussed, the paper focuses on three central issues. In sections four and five, it evaluates the extent to which the flawed presidential poll impacted on the fundamental right to participate in an election, life and personal security. Section six looks at the regional effect of the post-election violence and the international com- munity’s intervention to resolve the crises. In conclusion, the paper asserts that a rule of law culture must be embraced if democracy and human rights are to flourish in Africa. 1. COALITION POLITICS AND BROKEN PROMISES Kenya, a former British colony, gained independence in 1963. Unlike many consti- tutions,8 the post-independent Kenyan Constitution does not expressly provide for the right to vote. Rather, this right is contained in the National Assembly and Presidential Elections Act.9 The fact that the Constitution does not provide for a right to vote should not be interpreted to mean that it does not recognise this entitlement. On the contrary, s 43 of the Constitution, which deals with eligibility of a voter, provides for this right by reference. In 1982, the Kenyan Constitution was amended to make the country a one-party state.10 Thus, in presidential elections, whilst the right to vote existed in theory, in practice the choices were limited because there was only one presidential candidate running for office. Owing to engagement by internal and external players, the Con- stitution was again amended in 1991 to remove this contentious section.11 Effectively, Kenya became a multi-party state.12 From that point onwards the country was in principal walking the democratic path. According to the Kenyan Constitution, read together with the National Assembly and Presidential Elections Act, elections – civic, parliamentary and presidential – must be held every 5 years.13 The Electoral Commission of Kenya (ECK) is charged with the responsibility of running elections.14 In subsequent elections, which were held in 1992 and 1997, the Kenyan African National Union (KANU), under the leadership of Daniel Moi, won the presidential elections. As required under the law, the former president received more than 25% of the votes in five of the eight provinces.15 The 8. Gambian Constitution 1996, s 26; Afghan Constitution 2004, Art 33. 9. Section 15. 10. Section 2A (‘There shall be in Kenya only one political party, the Kenya African National Union’).