My Blog: Loud and clear: Unequivocal message from Kenya Supreme Court
On Saturday, March 30, 2013 Kenya’s Supreme Court, by a unanimous decision of 6-0 ruled that Uhuru Kenyatta had been “validly elected President in a poll carried out in a free, fair, transparent and credible manner.”
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Thus the much hyped, much heralded challenge by his main opponent and a notable civil society organisation has been thrown out of court. A Ghanaian with some knowledge of Akan would say with a high dose of sarcasm, “Se asa?” This is a popular way of expressing, “What else?”
The case filed by Raila Odinga and a civil society group seeking annulment of the election of Mr Kenyatta contained many allegations which were distilled into:
1. Voter register credibility and over-voting
2. Vote manipulation in favour of Mr Kenyatta
3. Biometric verification failure and general performance of the BVR kit
4. Electronic counting mechanism failure
Three scenarios faced the Supreme Court:
1. Uphold the election result to pave way for the swearing in of Mr Kenyatta as President
2. Nullify Kenyatta’s victory, triggering a fresh contest
3. Agree that there were irregularities but not significant enough to quash results
After hearing all the arguments, the court did a sample audit by ordering a re-count of votes from 22 of the most disputed constituencies. The outcome revealed some discrepancies which led the lawyers of each disputing party to claim that they had proved their claims. The judges had their own views.
In two weeks the Supreme Court will give detailed arguments that led to the ruling. At the moment, one can only infer from what the sample audit of votes has revealed that the law lords took the view that the irregularities were not significant enough to rob the presidential election of fairness, credibility and transparency.
This Kenya Supreme Court ruling is not exceptional. Five cases of electoral challenge in recent memory can be cited:
1. Since the famous Bush versus Al Gore case in 2000, the verdict in every petition for annulment or reversing results has always gone in favour of the candidate declared elected by the electoral authority.
2. In 2011 the challenge by the opposition to Goodluck Jonathan’s win was thrown out by the Nigerian Supreme Court.
3. In 2012, the Mexican opposition sought the nullification of the election of President Andre Manuel Lopez Obrador for alleged electoral malpractices by the party that put him up as candidate.
The decision at the Supreme Court was unanimous in Obrador’s favour.
4. The interesting Kizzia Bessigye versus Yoweri Musseveni case of 2006 raises some eyebrows. In this instance, the Supreme Court agreed with the petitioner that the election of Musseveni was marred by “irregularities, violence and voter disenfranchisement.” However, it upheld the results by 4-3 majority with the explanation that though those irregularities were significant enough, the cost of justice would be too heavy if the results were overturned. Ah, well!
5. In the Philippines where the vice-presidential ballot is conducted separately from the presidential poll, a vice-presidential candidate, Mar Roxas, was beaten by the narrowest of margins in May 2010. He mounted a legal challenge at the Supreme Court Tribunal against the electoral authority over rejected ballots. His claim was that in three electoral regions, the rejected ballots which largely belonged to him had been anomalously high.
He argued that the intentions of those voters were clearly shown and he wanted the number added to his total votes to enable him to overtake his opponent. The case has since stalled at the Supreme Court, which was a tactic of ruling against the petitioner because another election is due in May 2013 which would render meaningless, the value of the 2010 outcome.
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All the recent decisions have tended to reinforce the authority and integrity of the various electoral bodies. This is stated in the common saying that elections must be won at the polling stations and that the courts must not be saddled with intractable litigation after results have been declared and gazetted.
In such highly emotive situations of disputed results, people and institutions must show responsibility. The Kenyan political leadership and the media did a superb job calming the nation to await and accept the ruling. The media was very careful not to speculate or indulge in matters that were sub judice.
When the decision was handed down, Raila Odinga and the petitioners held a press conference and said they accepted the verdict even though they did not agree with every point of the ruling.
They felt that most of the serious irregularities highlighted by their lawyers had been disregarded. Nevertheless they agreed to abide by the ruling for peace and for demonstration of their faith in the constitution of the land. That’s it. Litigation has to end and people must get on with their normal lives.
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Not so with some supporters of the petitioners. Apparently taking the cue from incendiary drivel in cyberspace by faceless people, riots with gunshots and some destruction of property reportedly occurred in a few Odinga strongholds.
It must be emphasised that group behaviour depends on a number of factors, including incentives, the environment, the institutions and the fear of being punished. If the losers are bent on retaliation for taunts by the winners; if the institutions such as the Police and courts are not firm on rioters; if tribal chieftains still nurse old hurt feelings; if the media do not continue to keep their decorum, then Kenyans, indeed, have a testing time in these few weeks.
Happily, the Police seem on top of their job and are expected to quell further rioting. The courts are also ready for the violence peddlers.
It is to be expected that most petitions of the March 4 Elections currently lodged at the courts by aggrieved candidates for various positions – governors, senators and other elective posts – would fail as well.
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Odinga’s conduct since the ruling must be applauded all over the world. He, along with a lot of his core leaders are no longer young men and women. They are well past their 70th birthdays and might no longer be considered prime materials for future elections.
The best they can do is to nurture a cadre of young politicians fit for the digital age who must soldier on and not act like sore losers. Not too long ago, Kenya had been lambasted as the worst example of electoral violence. Now they should be the toast of all Africa.
Why do verdicts of challenges to presidential elections go the same way? According to Dr Luis Franceschi, Dean of the Strathmore Law School, what every petitioner wants is justice, but justice at what cost? He further makes the point that the law does not operate in a vacuum. The environment, the cost of justice, peace and stability and the need to invest the electoral body with authority are some of the considerations that will weigh heavily on what determines the outcome of such petitions.
For example, a Supreme Court ruling could have precipitated one of the following situations:
1. Odinga’s coalition losing the petition which did happen.
2. Odinga’s coalition winning the petition and winning a new poll
3. Odinga’s coalition winning the petition and losing a new poll
4. The timeline of 12 days prescribed by the Constitution in settling such matters would not be met.
5. High cost to the nation of a new poll: Mobilisation (police, army, logistics), general productivity loss, uncertainties and payment of allowances for recruited electoral personnel; additional financial cost to parties in the election.
Indeed, the message from Kenya is no different from what has been the trend in the recent 13 years: Supreme Courts are very careful not to precipitate a constitutional crisis by annulling results on the basis of irregularities arising from petty human errors. They tend to agree with the Electoral Commission and the assessments of international observer groups that monitored the election. As the saying goes, “Perfect elections can only be ‘Photoshopped’ from Utopia.”
By all means, perfection must be aimed for in the electoral process by continuous improvement. While striving for it, one must recognise that in spite of technology, the Electoral Commission and the election management process are largely human institutions with their inherent weaknesses. This, however, does not mean that overwhelming evidence of fraud would be ignored.
In this regard, civil society organisations are calling for a thorough audit of the biometric and electronic vote transmission system which have caused most of the disagreement problems. In Ghana and Kenya they have turned out a Frankenstein’s monster on one hand and a Mickey Mouse on another.
Article by Joe Frazier
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