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THE LAST WORD: Opening the Pandora’s Box

  

Judges stand to deliver their verdict at the Supreme Court in Nairobi on September 1, 2017, ordering a new presidential election within 60 days after cancelling after cancelling the results of last month’s poll.

THE LAST WORD: How the nullification of the presidential elections in Kenya has put that country on a slippery slope

Andrew M. Mwenda | THE LAST WORD | The Kenya Supreme Court annulled the election of President Uhuru Kenyatta and ordered a re-run because the balloting and transmission of results did not conform to the laws and constitution. There are many legitimate and convincing reasons to support the court decision – the moral repugnance of the irregularities, the need to hold leaders accountable, and the valuing of constitutionalism and democracy. Yet I want to argue that the justices took a very risky decision for Kenya.

In Kenya, and other poor countries with limited opportunities outside the state, the stakes in elections are always very high. Power can mean the difference between prosperity and destitution. People are willing to take the highest risks to gain and retain power. Since the re-introduction of multiparty politics in 1992, every presidential election has pushed Kenya to the brink. In 2007/08 it almost led to civil war and the dismemberment of the state.

Such a risk once every five years is affordable. Yet the Supreme Court ordered an election within three months of the last one. It is possible it will go without a hitch. But it is also very likely to heighten tensions and stimulate violence. If the court had considered this, it should have erred on the side of caution.

Now we must ask: what injury was the Supreme Court trying to cure? Many say it aimed to discourage electoral malpractices and irregularities. But will ordering another election force actors to avoid indulging in similar irregularities? And if the irregularities are repeated and the loser returns to the same court, will they nullify the election again? If yes, what is the end game? Third, can the political institutions of Kenya withstand the stress resulting from such nullifications and repeated presidential elections?

The Supreme Court decision is even more baffling considering the margin of victory was big (54% against 44%). International election observers from the African Union, the European Union and the Carter Center had said the election was free and fair and had asked the loser to concede. ELOG, a local NGO, did an alternative tallying of results and their numbers are almost similar to the official ones. Hence, in annulling the election on the basis of technicalities in transmitting results, the Supreme Court disregarded the freely expressed will of the Kenyan people.

Many supporters of the court say it did the right thing because the decision advances the cause of democracy. Yet it undermines democratic development. Democracy is a process, not an event; and the democratic journey is traversed at a creep, not a gallop. No court decision can shoot democracy into place. But courts can aid the democratisation process by avoiding scenarios that increase tensions. I am reliably informed that opposition leader, Raila Odinga, went to court to divert his supporters from protesting. He hoped that even when he loses in court, he would have demonstrated to them that he at least tried to defend their cause. If this is true, then Raila is a politician of great insight and foresight.

29 comments

  1. recipe for disaster, technically there is No free election. apparently even Hillary Clinton was cheated/rigged.God bless Kenya

  2. Mwenda, judges do not work with “imaginations”, they work with “specificity.” So let’s work with what was before them The case as present by the NASA coalition was to the extent that the election was not free and fair as there was “illegalities” and “irregularities.” Unfortunately, and because they did not provide the full extent at which they came up to such a conclusion, we can only wait for the grounds on which their judgement is based. In the meantime, however, the Uganda Presidential ruling (2001) had created an “absurdity” in law. When it declared that the elections weren’t free and fair but the “rigging wasn’t enough” to upset the elections. Their “imagination” that the “rigging wasn’t enough” lacked any “specificity” in the constitution. This is what the Maraga ruling corrects. Speculation is the work of economists, law works with facts.

  3. BRITAIN today is a much worse place than what it would be because of the so called POLITICAL CORRECTNESS.
    At some point or other a decision is made not solely on its merit, but because of the political implications it is likely to have.
    Let the judges make their JUDICIAL decision and leave the other arms to handle the respective fall outs, including the political fall out.
    MWENDA has over the course of time sought judicial intervention over issues that would have been better left alone and for time to take its course, but chose to take the judicial route.
    Life involves sarcrifices

  4. MWENDA suggests that AFRICA should be allowed to chart its own route and not follow what the WEST has done or is doing.
    Well in the US in 2000 Al Gore it is claimed, won the election but for the intervention of a one governor who was the brother of the eventual winner.
    Al Gore did not or was not allowed to go to court. Is this the part of the WEST that you are happy to copy.
    ODINGA should not have gone, or should not have been allowed to go to court , as was the case in UGANDA with BESIGYE.
    Or would you rather ODINGA had done the AFRICAN thing, and gone to the BUSH

    • Mr Engoraton, you are probably too young to remember the year 2000, hence your claim that “Al Gore did not or was not allowed to go to court”.
      Since you have access to the internet you could try googling “Bush vs Gore”, a casse which was decided by the US Supreme Court.

  5. Mr Mwenda
    at times your essay seems to fight against itself. You are indeed right You are correct to state that democracy is a process not an event, but then you go on t imply that the courts should stay out of certain questions because they are “political ones that no legal argument can solve”.
    Part of the democratic process is something called “the rule of law”. This phrase in plain English means that even the most powerful people in the land are subject to a process some process which can restrain their power; after all ordinary folk are subject to the law in ANY type of governance, democratic or not.

    Since you are fond of American examples you could consider the case of Brown vs Board of Education. In 1954 the US Supreme court ruled that racially segregated schools run by some state governments were unconstitutional. Now, the Southern US at the time was just like Kenya today, containing, in your words “different ethnic identities deeply suspicious of each other”. The Court made a ruling which did not do away with those suspicions, did not do away with segregation in life generally and did not undo the underlying political problem.

    The countries you usually write about have underlying ethnic tensions (which you generally avoid mentioning!) Perhaps you could read the briefs considered by the Court in this case (readily available online) and share with your readers how YOU would have decided Brown vs Board of Education.

  6. Mwenda,

    I’m just wondering, how would acquiescence in electoral fraud lead to democracy “infinitely correcting itself”? You note so rightly that elections in Africa can make the difference between prosperity and destitution and that, as a consequence no person or group will relinquish power without a bloody fight. Isn’t it reasonable to argue that with this in mind, we need to exert constant pressure on those who would like to cling on to power by all means, including rigging elections? And surely, a court ruling of this nature is part of that pressure. How can democracy improve if incumbents know that they can rig elections with impunity?

  7. Sserukeera, the one who is early, ignorance is not a function of age, yes maybe I made an error in my interpretation of of that particular event, thanks for your correction.
    Mwenda would have you believe that what his demigods M7 and Kagame did resulting in the deaths of millions of people was right simply because he is on the right of that destitution line.

  8. Right side of the destitution /prosperity line

    • THE articulate Andrew mwenda died . money and sycophancy taken over. why do we have different yard sticks for democracy in Africa and Europe/America.bravo supreme court of Kenya.

  9. 1.Africans no longer shock the world any thing can and has happened to her.
    2.By the click of a button in a computer alot of fraud can happen.The Odinga camp says it hired IT experts to check the results what if Odinga’s camp hacked into the system?why were they stuck to the ICT loop holes only?who verified the authenticity of the ballot papers that bore no serial numbers?next time votes should be counted manually like we do in Ug.The Trump/Clinton election was messed up by Russia all clinton’s votes went to Trump.
    3.The Obama influence has really got to Kenyans’ heads they still want the limelight
    4. Its difficult to tell when Africans are genuinely excited in Ug there was a stage managed excitement after Bobi Wine’s win for me i failed to get excited i dont even know how to get excited when i see Bobi Wine.

    • It is one thing that I know of Winnie that always pulls your trick. It is called “Ganja.” Stop living in denial, Winnie.

  10. As it stands, Andrew’s pessimistic analysis of Kenya’s supreme court judges decision seems to be right. Between Odinga and team contesting IEBC, Kenyatta threatening Odinga’s impeachment, Parliament reopening with some absentees, some important political figures on all sides crossing from one side to another, this looks a right mess. I still believe that in the end, Kenyans will remember that what they are supposed to fight is poverty, not one another. This is why much as I know it is utopian, I continue to pray that Africa where possible loosens up with confrontational politics. Right now, Kenyans should have been focusing on continuing their history of economic empowerment. Instead, they are having to relive political drama. Still, many in Africa have hailed Kenya a beacon of democracy. What can we say? Just pray for the best…the judges could not have ruled any other way. They have to serve justice . Whoever is behind the rigging are the people we should be angry with.

    • Dr. Eng. Kant Ateenyi

      But fellow brothers and sisters – what is wrong with you?
      Who confused you that these mechanistic justice things will solve Kenya’s or for that matter, Africa’s problems at this point in time? Forget it!! I am not a pessimist (I can be very optimistic when people sit down, analyse events AND ACT scientifically). Do the motives behind the rigging disappear by virtue of these judges’ decisions? Are the factors behind these motives addressed by the ‘judgement’? Is it only one side which rigged – and if so, would it not have been too naive of the other side to have just looked on during the rigging – In which case, would it be correct to expect naive chaps to take over power?

      For me really, what the Kenyan elections and subsequent judgement show is an exposure of our (I mean most Africans) pretences to ‘ape’ the west without a thought. And we are doing it very badly – perpetuating the mentality that we are as yet ‘unready’ to advance ourselves without western systems. Even when we ape the west on technologies (ITC in these elections), we do so in such a shambolic way as to more clearly expose our otherwise hidden ill motives.
      This electioneering for now is a mess. One would wish to have the resources so wasted on the mess, to be better utilised in real production work: Agricultural, Artisanal, Mineral prospecting and processing and manufacturing. For it is advances in those areas by Africans that will create wealth to lead us from the backward state in which almost all of us are in!!!!!

      Cheers – and for the hopefuls, keep wishing on ——

      Dr. Eng. Kant Ateenyi – Cape Town

  11. Dr, Engineer Atenyi, what exactly is the African way that you are prescribing.
    Is it not possible or even desirable to pursue this so called goals of yours and democracy or good or civil governance at the same time

    • Dr. Eng. Kant Ateenyi

      Thanks for asking brother:
      I see two ‘difficult’ questions you ask here: I’d rather begin with the second one. First of all – you are imagining ‘democracy’ as ‘civil or good governance’: civil or good to who and defined by whom? Whichever response one may have on that, My answer to the question of concurrent agric, mining and manufacturing with that mirage of ‘democracy’ in the present circumstances for most so-called African countries is a definite ‘NO’. I can write a volume on that but I do not have the time. On the 1st question – about the so called ‘African way’, I am afraid there cannot be just one for all of us – although from some different perspective, I prefer a reduction of so called countries to a few confederates (not exceeding 4). I know I am ‘dreaming’ – but one needs to do so before serious planning starts (just as many pro-western ‘democracy’ are doing but without taking past and present realities into consideration).

  12. So, what sitting (sh***ng) down are you talking about n mbu analysing things scientifically.
    So voting n going to court is not sitting down or do you think the judges looked into a crystal ball in order to reach their decision.

  13. Your reasoning wants to make me think that Dr thing is associated with being a Sangoma, n the Cape Town thing!!!

  14. Dr Eng Kant Atenyi, Cape Town, , I see you are so worked up you forgot to sign off, not so sure this is The Atenyi

  15. The moment someone starts signposting themselves as Dr this, Professor that and London or Timbuktu then you know you have a problem on your hands.
    The person is trying to cow you into thinking that because they have all these lofty titles then their reasoning goes with the territory , or that because they are in this big city then likewise they do not reason like someone from Rwashamaire or Katwe.
    If someone like WINNIE had to put down all her qualifications, she would run out of characters before she made her point, and then being the jet setter she is, which city would she signpost with.
    Obwa Dr oba Engineer oba Cape Town byesigalize.

    • I love this forum

    • Don’t be worked up by these titles ejakait, they are just that until the holder does something to benefit us society. Engineer and Doctor are qualifications
      Qualified, in most cases, simply implies a formal recognition by some institution that the person concerned has been taught and as far as the institution can tell (through its limited examination systems) the person knows something of the subject alluded to. A university can train you and qualify that you are competent in a specific subject. But no institution will ever accept to vouch that ejakait, ateenyi or rwasubutare is educated. educated means refined in a mill and starts at your mother’s thighs ; these days at the house-help’s. …..continuing to build on until one drops dead. I will give an example, Kakyama is qualified but near zero educated while Winnie is well educated but semi-literate.

      • Good old buddy Rwasubutare, nice to have you around, certainly a breath of fresh air, that dig at WINNIE notwithstanding.

        • Always near you my brother ejakait. what say you about age limit? Ug should experiment to do a month without the cabinet…all on leave, leaving the PSs to drive and then eevaluate.

  16. Ejakait Mukwano,

    Kale Ssebo.
    I am off to some more exciting and result-oriented (read solar engineering) work – more likely to benefit the ppl in Katwe, Rwashamaire and rural Teso (than this wala-wala-wala-wolokoso). Watch the space in the coming months and year.

    Cheers brother.

  17. The NASA camp alleged that Chris Musando was killed by the Kenyatta’s camp why would Jubilee kill some one who would make their win easy?Its the NASA Camp that killed Musando why do i say so its coz from day one they were more concerned about the IT section of the Electrical Commission than concentrating on campaigns.

    @Rwasubutare:Why should my illiteracy bother you?most African men are so comfortable with their illiterate women they like it when their women say Prince William is the Manger of Manchester United.I always see them so excited around barmaids and ushers every Uganda man has an usher’s phone number.

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