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Court ruling has had seismic impact on Kenyan elections

Monday September 4 2017

From left, Supreme Court Judges Njoki Ndung'u, Smokin Wanjala, Deputy Chief Justice Philomena Mwilu, Chief Justice David Maraga, Jackton Ojwang , and Isaac Lenaola at Supreme Court on September 1, 2017.

From left, Supreme Court Judges Njoki Ndung'u, Smokin Wanjala, Deputy Chief Justice Philomena Mwilu, Chief Justice David Maraga, Jackton Ojwang , and Isaac Lenaola at Supreme Court on September 1, 2017. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP 

By RASNA WARAH
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There have been few moments in the past decade when I have felt truly proud to be Kenyan.

One such moment was when the new Constitution was promulgated in August 2010; another was when the Supreme Court made its historic ruling on Friday.

The Supreme Court sent an important message to the country’s citizens—that no one, not even the President, is above the law and the Constitution.

As Chief Justice David Maraga stated, “The greatness of any nation lies in its fidelity to the Constitution and to the rule of law.”

Countries in Africa and elsewhere that have become accustomed to electoral fraud and violent elections can now look to Kenya for inspiration.

The nullification of the 2017 presidential election results by a majority on the Supreme Court Bench stunned international observers.

POTENT DISPLAY

The Economist called it “an astonishing decision” while the New York Times noted that “the ruling offered a potent display of judicial independence on a continent where courts come under intense pressure from political leaders”.

Western and other nations, whose election observers were quick to declare this election free and fair, have been caught with their pants down.

How will they justify their congratulatory observations when none other than the Supreme Court of Kenya has decided that this election was fraught with irregularities?

What the ruling did was put temporary brakes on the rollercoaster of impunity that has characterised almost every election in Kenya.

The ruling may not end impunity in Kenya’s electoral processes but it will have a far-reaching psychological impact on the citizens, who have been led to believe that peace is synonymous with justice.

FEAR

Since the traumatic 2007 presidential elections in Kenya, the country’s citizens have lived with the fear of election-related violence. This fear has made us blind to election-related irregularities. We assume that any dispute regarding these irregularities, legal or otherwise, will lead to bloodshed.

What the precedent-setting ruling last week demonstrated is that it is possible to contest an election without shedding blood.

It went a long way in restoring our faith in our institutions, particularly the Judiciary, in resolving disputes.

Whether or not the re-run of the election in two months will lead to a victory for the Opposition, the ruling made it clear that electoral malpractices in Kenya will no longer be tolerated, condoned or whitewashed.

Kenyans’ faith in judicial processes to resolve electoral disputes was severely dented four years ago, when the Supreme Court unanimously ruled that the 2013 election was free and fair even though there appeared to be ample evidence suggesting otherwise.

Signs that the 2017 election was not going to be free and fair began emerging even before a single vote was cast.

MURDER

The brutal murder of the Independent Electoral and Boundaries Commission’s ICT manager Chris Msando a week before Election Day was an ominous sign that things were not going to go fairly or smoothly.

Few of the Jubilee Party leaders appeared concerned about the murder, which had the look and feel of an assassination.

Moreover, their assurances that thorough investigations would be carried out were not convincing. They clearly underestimated the psychological impact of the crisis. 

The saga of the printing of ballot papers in Dubai also raised questions about the integrity of the IEBC and whether it could be relied upon to be transparent.

On election day, many of the critical Forms 34A and 34B, which are used to tally the vote, seemed to be missing or had not been transmitted electronically.

LEGAL MECHANISM

Despite these anomalies, however, IEBC did not hesitate to declare President Uhuru Kenyatta the winner.

On August 14, shortly after he was declared the winner, President Kenyatta appealed to those who were not satisfied with the election result to “use the legal mechanism which has been created by our wonderful Constitution”.

Yet, a few hours after the Supreme Court made its ruling on Friday, he rubbished this very “legal mechanism”—including CJ Maraga — when speaking to a crowd of supporters in Nairobi. Doublespeak?

Kenyans are not out of the woods yet. The next two months will be tense and full of uncertainty.

There is still no guarantee that the repeat presidential election will be free and fair. But one thing is certain: A seismic shift has occurred in Kenya.