Kenya’s Supreme Court ruled on September 1st that the results of the presidential elections which were held on August 8, 2017, are invalid due to serious irregularities and ordered a re-run within 60 days. The Independent Elections and Boundaries Commission (IEBC) first set the next election date for October 17, 2017 and now has been postponed to October 26. In “Why did Kenya’s Supreme Court annul the elections?” Nanjala Nyabola, a Kenyan writer and political analyst based in Nairobi and writing for Al Jazeera, said that the IEBC did not conduct the elections in accordance with the Constitution. Furthermore, some “forms provided by the IEBC didn’t have serial numbers or barcodes, and some were simple lined paper with numbers scrawled on them.” Finally, Nyabola noted that the Kenyan Supreme Court ruling is the first of its kind and “put Chief Justice David Maraga in history books as the first African chief justice to oversee the annulment of election results.” Opposition candidate Raila Odinga brought the legal challenge before the Supreme Court after he was declared by Kenya’s Electoral Commission the loser of the 2017 elections to the incumbent President Uhuru Kenyatta.
In general, Kenyans, like citizens of many African nations, do not have faith in their justice system. Today the same Kenyan justice system which has been on the bench of the accused is being praised for upholding the rule of law on a matter of national importance. The rule of law allows citizens participation, fairness, and is the basis of good governance which is lacking in Kenya and Africa in general.
Supreme Court Enforced the Law to Save Kenya’s Democracy
The conscience of the Kenyan nation is forever marked by the ethnic violence which followed the contested presidential elections in 2007 which Mr. Raila Ondinga lost to his opponent Mwai Kibaki. The civil unrest led to hundreds of deaths and many more displaced. Also, according to news reports, at least two dozen people were killed in the protests which followed the 2017 elections. Oftentimes when there is a victim and the affected communities and families call for justice, justice remains absent. The supreme court ruling to nullify the presidential elections, seen from this context, is the first step of the long journey to reassure the Kenyan people that they deserve a trustworthy justice system. Also, there is no doubt that the national and international legal challenges involving election-related violence, particularly during the 2007 electoral cycle, paved the way to this decision by Kenya’s Supreme Court.
Kenya Model for Rule of Law Africa
The Supreme Court’s order to hold another round of elections must serve as a model for just governance in Africa. Because of the widespread disregard of the rule of law by so many African leaders, Kenyan President Uhuru Kenyatta’s acceptance of the Supreme Court ruling is characterized as historic by many people across Africa, particularly policy analysts and politicians, to the exception of African head of states and their associates who are guilty of election rigging. The African Union Chairperson, H.E. Moussa Faki Mahamat, in a statement acknowledged the Kenyan court decision and added “that the judgment advances a culture of democracy and peace, constitutionalism and rule of law in Kenya and Africa in general as enshrined in the 2000 Constitutive Act of the African Union and the 2007 African Charter on Democracy, Elections and Governance.”
Challenges to Elections in Africa
One of the threats to Africa’s judicial systems is corruption. Some judges are greedy, partisan or ethnocentric and have sold their independence for cash and royalty to those in power and or their own ethnic groups. Others are threatened and told what judgment to deliver in cases of interest to the powerful, particularly politicians and military leaders. However, Kenya has made it a point to let the world know that judicial independence is the way forward.
Some African leaders have gone beyond rigging elections and added another layer of power consolidation by successfully and legally removing presidential term limits in their constitutions. In the interest of democracy on the African continent we need independent lawmakers to, among other things, repeal all unlimited presidential term limit laws. In the case of Burkina Faso, however, it was the people who rose up and forced Mr. Blaise Compaore from power when he attempted to remove the presidential term limit provision from the constitution. Strong institutions within a democratic system are a clear and certain path to Africa’s prosperity, peace and justice, and Kenya’s Supreme Court just showed the way forward by nullifying the results of the 2017 presidential election and ordering a new vote to take place.
Obstacles to Overcome Ahead of the Re-run
There are many concerns about Kenya’s readiness to correctly and efficiently organize another election within the 60 days given. On a long list of issues to address is the call of the opposition to first reform the electoral commission. Furthermore, it was reported by BBC news online that the voting machines and tablets used to identify voters were not going to be ready by October 17, the initially set date for re-run election. Now the electoral commission has moved it to October 26. Also, death threats against judges and members of the electoral commission as well as ethnic polarization continue to raise concern on whether the elections will be free, fair and credible. Kenyans need the solidarity of the international community in their effort to hold a peaceful re-run of the presidential elections.
By Ntama Bahati Jacques, Policy Analyts, AFJN