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.