Now, in Kenya, not even a President is above the law

Saturday September 2 2017

By LUIS FRANCESCHI
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Oliver L. Brown wanted the best possible education for his daughter, Linda, a pupil of African descent in the third grade at a black elementary school in Topeka, Kansas.

Little Linda had to walk for one mile through a railroad switchyard to catch a bus and attend a distant school, even though a white elementary school, Summer Elementary, was only seven blocks away from her home.

In 1951, Oliver tried to enrol her at Summer Elementary, but the school refused to admit her on racial grounds. Summer was a school for Whites.

Oliver did not know what to do.

The leadership of the National Association for the Advancement of Coloured Peoples (NAACP), which had been founded in 1909, encouraged Oliver to go to court and other African-American parents joined him in the case.

NAACP was the oldest, largest and most widely recognised grassroots-based civil rights organisation in America.

Oliver’s peers ridiculed him. Oliver, they thought, may have been the only lunatic who did not know the courts were in favour of the system. The courts were white, and if his case reached the US Supreme Court, it would be judged by nine white men.

There was no Black person, no woman and no diversity.

To add insult to injury, the courts had consistently affirmed the rule set by the 1896 Supreme Court landmark case, Plessy v Ferguson. The Plessy rule upheld “state racial segregation laws for public facilities under the doctrine of separate but equal”.

Oliver lost in the District Court, where the Plessy rule was upheld and he could have gone wild, violent and irrational. After all, a great injustice was being imposed on him and his family on racial grounds.

But Oliver was wise; he decided to go to all the way to the US Supreme Court. On 17 May 1954, against all odds and prognostics, Chief Justice Earl Warren delivered a unanimous ruling in the case Brown v Board of Education of Topeka, Kansas.

Thus, the US Supreme Court made its most important decision in the 20th century, declaring that segregation of public schools was a violation of the 14th amendment of the United States Constitution, and therefore unconstitutional.

Oliver Brown’s persistence and tenacity won a case not for Linda, but for America and the world, where segregation was the norm.  

Just like Brown v. Board of Education, the case of Raila Odinga v IEBC and Uhuru Kenyatta seemed to be a lost cause. And just like Brown v Board of Education, in Raila Odinga v IEBC and Uhuru Kenyatta, Kenya’s Supreme Court has already made history. What an unexpected shock the Supreme Court had in store for the opposition, for the government, for Kenya and for the world.

A first in Africa, it will certainly be the first of many.

Nasa supporters will chant “Victory!” while Jubilee supporters will shout “Idiocy of a rogue court”. But this is neither victory nor idiocy and it is not about who won the elections, but about a process.

WHY SO UNEXPECTED?

There are four main reasons why nobody, neither Nasa nor Jubilee nor independents, expected the Court to declare the elections null and void. First, courts in Africa have traditionally been compliant with the Executive; they have been pro status quo.

This has allowed innumerable aberrations to find their legalistic justification through our courts. One example is the nullification of 600,000 votes in Côte d’Ivoire in 2010, which allowed the electoral body to declare the incumbent, Laurent Gbagbo, the winner.

Second, most judiciaries in Africa, and in most Third World countries, are not independent. Their independence is deeply compromised, either financially through budget constraints and cash threats, or administratively either through manipulative appointment procedures or weak tenure, or morally, by bribing judicial officers. 

Third, in most cases, it is extremely difficult to meet the high standards of evidence. Article 83 of the Elections Act places this standard higher than just a “balance of probabilities” but lower than “beyond reasonable doubt”.

In this regard, it was perhaps Pheroze Nowrojee’s presentation that tilted the view of the court. The Senior Counsel made a powerful point when he explained the “Bomas Triangle”, making an allegory to the Bermuda Triangle.

So, where had the Form 34As vanished? The IEBC had explained to Nasa in writing that they could provide form 34Bs, but not 34As.

If IEBC was missing almost a third of all Form 34As, how did they transmit results, and how did numbers made it onto Form 34Bs? This was a major blunder.

Nasa’s lawyers were prudent not to present the fake server, log which would have derailed the whole process. They chose, instead, to focus on the whole process, and as the Chief Justice rightly explained, the election is a process 

Fourth, the uncertainty of future developments. Nullifying an election requires huge amounts of either courage or delusional behaviour. It throws a country into the unknown. Another election, that may also be contested, and so on and so forth…a never-ending story.

UNBELIEVABLE DECISION

The most remarkable consequence of this electoral process is the reaffirmation of our institutions. The announcement of the results by the IEBC initially saw calls by a cross-section of Kenyans who support the Nasa political brigade for secession.

These calls were driven by real or imagined feelings of exclusion from the participative democracy that is Kenya.

The first win in this matter is an affirmation that even a presumptive president can be pegged back, even where his or her lead seems insurmountable due to concerns about the electoral process. 

It is amazing that the grievance of one side in the electoral process is of such consequence to Kenya that the country is willing to start the process afresh to make sure we move forward together as a country. This is sound bedrock on which to build a democracy.

Irrespective of who wins, this decision is a great example of judicial independence and respect for the rule of law. According to the Supreme Court, political rights under Article 38 of the Constitution merit the same treatment as any other fundamental rights and freedoms under the Bill of Rights.

As one of my colleagues puts it, “This can be a turning point for whoever is our next President. He can rely on our courts as allies in the fight against corruption. They have shown that they have backbone. This opportunity must be seized.”

We will have another election in 60 days.The national examinations, KCSE and KCPE, will need to be moved. Elections and exams compete for space because polling stations are also exam centres and they cannot be too close to each other.

Meanwhile, President Kenyatta has been left in charge and there is no power vacuum, but he is in legal limbo. He is no longer President-elect but he is also not a President with full powers. President Kenyatta falls under what the Constitution defines as President “during temporal incumbency”. This situation is regulated under Article 134 of the Constitution.

TEMPORARY INCUMBENCY

Though presidential results were declared null and void, elections did happen and they were acknowledged by the Court. It is only the results that were declared null and void, not the elections in their totality. This means that as per Article 134, “temporal incumbency” was triggered, for it starts operating on the first date of the first vote in a presidential election.

Therefore, during temporary incumbency, the president cannot exercise certain powers, like appointing judges, cabinet secretaries, ambassadors, public officers, etc. And during this period, the president cannot appoint anybody to the IEBC, so what Raila Odinga is asking is a legal impossibility.

He will have to make the best out of the situation and it will be up to Mr Chebukati to make any changes within the structure. The Supreme Court will make its substantive reasoning public by 22 September, just 38 days before the next election. The die has already been cast.

THE NATION’S GREATNESS

The Austrian Constitutional Court nullified the results of Austria’s Presidential election in May 2016. The Court’s President, Gerhart Holzinger, said that, “elections are the foundation of our democracy. It is the most notable duty of this constitutional court to keep those foundations sound … bolster the trust in our legal system and our democracy.”

The Supreme Court’s decision will have far-reaching consequences. New elections, more campaigns, more money spent, more election petitions. This decision has also enhanced our confidence in the truly independent judiciary.

This decision will resonate across Africa. It is a wakeup call, a new Brown v. Board of Education landmark decision.  As Justice Maraga said, “the greatness of a nation lies in its fidelity to its constitution and strict adherence to the rule of law, and above all, the fear of God.” 

Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi