Hopefully, judgment will pacify voters and halt march to uncharted territory

Jubilee Party supporters demonstrate outside the Supreme Court, Nairobi, on September 19, 2017 calling for the removal of Chief Justice David Maraga. Kenyans are waiting to hear the Supreme Court judgment that led to the nullification of Uhuru Kenyatta's poll victory. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP

What you need to know:

  • The courts see themselves as having the duty to enforce constitutional principles and have in the past annulled elections.
  • The Supreme Court has to explain how the election of Mr Kenyatta ended up being null and void.

The Supreme Court will on Wednesday give a detailed judgment, accounting for why they cancelled the re-election of President Uhuru Kenyatta.

The ruling comes at a time when the country is looking into a veritable constitutional abyss: on the one hand, Jubilee supporters were out in the street protesting what they claim was an unfair nullification of Mr Kenyatta’s victory.

The amount of quiet, sullen fury in this constituency that was generated by the annulment has gone largely unnoticed. 

IEBC
On the other hand, Nasa candidate Raila Odinga has put the Independent Electoral and Boundaries Commission on notice.

He is demanding a raft of changes, including the sacking of officials, fresh procurement of ballot papers and the sacking of the French technology provider.

Meeting all these requirements will likely take longer than the two months allowed in law.

IEBC is gripped by the institutional malaise of buck passing, a power struggle and the shameless seeking of publicity.

JUDGMENT

There is also every possibility of unprofessional conduct on the part of commission staff who are likely working in cahoots with outside parties.

It will be a mercy if the country does not burn as officials leak memos.

As a result, the country is in danger of exhausting the constitutional window of holding a fresh presidential election, at once defying the orders of the Supreme Court and entering into a dark, uncharted territory.

Wednesday’s judgment is widely anticipated not only because it provides the roadmap for the immediate future, but also because observers and Kenyans in general are anxious to hear the reasoning and evidence behind one of the boldest judicial decisions on the continent.

CREDIBILITY
The Supreme Court’s mind appeared quite clear about its opinion of the conduct of the election; it concluded that IEBC “failed, neglected or refused to conduct the presidential election in a manner consistent with the dictates” of the Constitution and Elections Act.

The court also, while absolving Mr Kenyatta of any wrongdoing, said IEBC “committed irregularities and illegalities inter alia, in the transmission of results” and that the details of these will be given in the detailed judgment.

Finally, the judges said the “irregularities and illegalities affected the integrity of the election” and thereby contaminating the entire presidential election.

WIN CANCELLED

The courts see themselves as having the duty to enforce constitutional principles and have in the past annulled elections, irrespective of whether the will of the people or not was expressed, in some cases where they found the Constitution was not followed.

In the Omingo Magara case of 2010, the court nullified the election even though a scrutiny and recount of the votes showed that Manson Nyamweya won by thousands of votes, the election was so chaotic and the conduct of election officials so brazen that it was questionable where some of the ballot boxes had come from.

In many parts of the country, it appeared as if the voting on August 8 was a lot more organised than in the Magara case.

SERVERS

But it is the transmission of results that the court said there were “irregularities”, which is legalese for mistakes and “illegalities”, which they will expound on Wednesday.

IEBC’s servers and transmission system have been the focus of excited and obsessive attention, with talk of algorithms, hacking and the misuse of the chairman’s password dominating political conversation.

Again, it will be interesting to hear why the common sense remedy, mentioned by former US Secretary of State John Kerry, that of auditing the physical ballots, did not suffice.

Finally, the judges will demonstrate through evidence and legal logic that all those “irregularities” and “illegalities” invalidated the election and it has to be done all over again.

RULE OF LAW
In general, the Supreme Court has the rather delicate job of explaining to more than eight million voters, many of them simple peasants, how the election of Mr Kenyatta ended up being null and void, never mind the total number of votes they gave him.

Persuading them and convincing them that justice has been done, that their candidate has not been hard done by is as important in securing tranquility and respect for the courts as convincing the petitioner and his legion of followers that his rights have been defended.

The country is looking to the court to provide guidance on what comes next so that the country does not slip off the radar of the rule of law as it will if it violates the constitutional mandates for a new election.

COALITION
Three possible outcomes are being discussed in politics and social places.

The first, and most desirable, is that some of kind of agreement is reached by the political parties, IEBC pulls itself by the bootstraps and conducts another proper election.

The other outcome is that the judgment sufficiently impeaches Mr Kenyatta’s perceived re-election in the eyes of his constituency as to convince them to come to some accommodation, call it nusu mkate, through a process of negotiations.

This, it has to be said, is an unlikely outcome of dubious legality.

SOVEREIGN RIGHT

The one that is favoured by the hard ball school of thought is, through protests and civil disobedience, let the country fall off the constitutional cliff.

The reasoning here is that without a government whose legitimacy is beyond question, a political, power-sharing deal can be struck and everybody lives happily ever after.

From a values point of view, it is a bad choice, which can only be tried in the most desperate of circumstances.

It robs the people of their sovereign right to elect a government freely through an election.

CONSEQUENCES

It also sets a precedent that will be exploited for years for come: losers will not accept defeat, they will call protests to seek inclusion in government, elections could lose meaning.

Besides, beyond the constitutional cliff lies great danger.

It could provide an opportunity for forces, who might view the 2010 constitution and achievements such as devolution and greater democratic space as “indiscipline” and who might wish to exploit the constitutional vacuum to install a system which is far from democratic, with the excuse that it prevents the country from sliding back to 2007 conditions.