Belt up Kenyans, we are headed for a rough 60-day patch

Kenya has made history. Its Supreme Court made a rare ruling, annulling the re-election of President Uhuru Kenyatta in the August 8 elections with a huge margin of 1.4 million votes.

Blissfully, the ruling affirms Kenya as a new bona fide liberal democracy.

But it also reveals creeping ideological and jurisprudential divisions in our courts, likely to undermine public perception of the impartiality of the judiciary, exposing it to potential reprisals by sections of the aggrieved political class.

Kenya becomes the first country in Africa, and exceptionally very few in recent history, where a supreme court has overturned officially declared results of a presidential election.

It joins Maldives and Austria where the supreme courts have recently overturned the will of the people on legal and administrative technicalities.

“The presidential election was not conducted in accordance to the Constitution. The results are null and void,” Chief Justice Maraga declared.

PRESIDENTIAL ELECTIONS

In Maldive Islands in the Indian Ocean, the Supreme Court nullified the results of presidential elections held on September 7, 2013, leading to a repeat poll on November 9 and a run-off on November 16. 

In Austria, where the presidential elections took place on April 24, 2016, the Supreme Court annulled the results of a second round run-off on May 22, 2016 paving the way for a revote on December 4, 2016.

This is the second ruling by the Supreme Court, created by the 2010 constitution. The first was a unanimous affirmation of the results of the 2013 presidential elections.  In contrast, the 2017 ruling was by a simple majority with strongly dissenting opinions. 

Of the six judges involved, four — Chief Justice David Maraga, his Deputy Lady Justice Philomena Mwilu, Justice Smokin Wanjala and Justice Isaac Lenaola — were of the opinion that “irregularities” and “illegalities” affected the conduct of the polls.

SUPREME COURT

The ruling has put the Supreme Court on trial. It has revealed serious ideological and jurisprudential divides likely to bedevil the judiciary.

The ruling hit Jubilee like a jolt from the blues. However, had the governing party pundits invested in unearthing the ideological schisms in the Supreme Court, they would have seen the ruling coming.

For example, Chief Justice Maraga’s puritanical view of the democratic electoral process is neither new nor private. It is patently public. 

This became evident in the high-profile case (Joho v Nyange and another) of 2008, where he declared that: “The law is therefore clear as to when an election can be nullified. An election will be nullified if it is not conducted substantially in accordance with the law as to the elections. It will also be nullified, even though it is conducted substantially according to the law as to the elections, if there are errors or mistakes in conducting it which, however trivial, are found to have affected the results of the election.” 

TRIVIAL

However trivial, errors and mistakes matter to the Supreme Court puritans, and trivial “irregularities” and “illegalities” are sufficient reason to overturn the will of the people. Elections must adhere 100 per cent to the process and the letter of the law. The will of the people and political consequences of court rulings are secondary.

On contrast are those judges valorising the will of the people and concerned with the larger picture of democratic elections as imperfect and work in progress.

In this regard, one of the dissenting Judges,  Njoki Ndung’u, argued that the irregularities and illegalities were not sufficient to change the outcomes or to warrant the overturning of the will of the people expressed in the voting. The second, Justice Jackton Ojwang, argued that “there is no iota of evidence to merit the overturning of the election.”

Perhaps unintendedly, the ruling confirms Kenya’s constitutional order and asserts the rule of law. Although disagreeing with the ruling, President Kenyatta said he would respect it. Opposition leader and petitioner Raila Odinga hailed the ruling as a “historic victory for Kenya.”

STABILITY

Moreover, for a while, the decision has restored the stability of the Kenyan system. It has helped demobilise forces advocating post-election violence.

In its immediate aftermath, the ruling has drowned open calls to violence by sections of human rights extremists in civil society, who threatened that Kenya would burn if Kenyatta was sworn in as President and even publicly advocated the break-up of Kenya into ethnic “republics” along the lines of former Yugoslavia.

NASA’s own confidence in courts has been restored. In 2007, Odinga declined to seek redress for his grievances in court, instead calling his supporters to the streets.

This plunged the country into a cataclysmic violence that pushed the country to the brink of state failure. In 2017, NASA had declared that it would not go to court but appeal to the people.

POLITICAL CLASH

Inadvertently, perceptions of the ruling as a reflection of a desire by the Supreme Court to assert itself over the Executive in a political style has thrust the court into a tornado path of a vicious political clash of rival camps of the political class. Jubilee argued that “six individuals” have ousted the will of over 45 million Kenyans. Its pundits view the consequences of the ruling as a “civilian coup”.

The court has, however, only delivered half victory to Odinga.

Admittedly, a new election is a burden to NASA. Like Jubilee, NASA has to mobilise huge finances for campaigns at a short notice.

Notably, NASA principals — with the exception of Senator Moses Wetang’ula — are literally jobless.

PRESIDENTIAL CONTEST

One scenario from a repeat election is an Odinga victory in the presidential contest. Despite the reprieve from the Supreme Court, all odds are stacked against NASA which has lost Parliament, Senate, Woman Reps, Governors and Members of County Assemblies to Jubilee. Out-numbered, out-gunned and out-there, “President Odinga” cannot govern.

The best case scenario for Odinga is a negotiated power-sharing arrangement with the Jubilee majority.

But Jubilee has ruled out any “nusu-mkate” (power-sharing government) and hit the campaign trail starting with Nairobi. Kenyans should belt up, we are headed for a rough 60-day patch.

Prof Kagwanja is a former Government Adviser and currently heads the Africa Policy Institute