By Prof. Paul Tiyambe Zeleza
Today, September 1, 2017, the Supreme Court of Kenya issued its much-anticipated decision on the presidential election held on August 8. By a majority 4-2 decision, the Court annulled the re-election of incumbent President Uhuru Kenyatta. The Court declared that the Presidential Election “was not conducted in accordance with the Constitution and the applicable laws.” Specifically, the Supreme Court cited irregularities and illegalities committed by the Independent Electoral and Boundaries Commission (IEBC) in the transmission of the results, and stated that this affected the integrity of the election. It ordered a fresh presidential poll in 60 days.
As would be expected, the Court judgment was greeted by celebration and condemnation in the opposition and ruling party strongholds, respectively. Early indications were that there was some disquiet in business circles as the stock market and Kenyan shilling tumbled upon the immediate announcement of the Court decision. Crucially, the political leaders and media pundits respected and accepted the Court ruling, notwithstanding their predictable disagreements and differences.
This is a watershed development in Kenyan and African political history. It is the first time that a presidential election in an African country has been revoked by the judiciary (and fourth in the world). This development compares, in its significance since the dawn of Kenya’s “second independence,” to the elections of 2002 that marked a milestone in Kenya’s protracted and bumpy road to democracy. It effectively represents a landmark consummation of the new democratic constitution of 2010 that emerged out of the unprecedented 2007-2008 post-election violence that rocked this lovely and proud nation.
Thus, the decision by the Supreme Court demonstrates the maturing of Kenyan democracy, the consolidation of a functioning democracy. It underscores the independence of the judiciary, the growing strength of public institutions, and deepening national commitment to transparency, accountability, and the rule of law. It has given Kenya a priceless opportunity to restore public faith and trust in the judiciary, one of the three critical organs of government and good governance. Trust in public institutions is indispensable for national cohesion, and imperative for sustainable development.
The next sixty days will provide a supreme test for the Kenyan political class and civil society whether or not the country and its demos will move forward or stall in its complex and exacting journey of constructing an integrated, inclusive, innovative, and sustainable democratic developmental state and society. There can be little doubt that passions will run high in the next two months of new presidential campaigns. The danger lies in allowing heated party competition to degenerate into violent political polarization. The two main contestants, President Uhuru Kenyatta and Mr. Raila Odinga, understand the high stakes for the future of their beloved country. In their initial remarks after the Court issued its judgment, they rightly stressed the need for peace.
At the time of writing many issues remain unclear. Will the election be conducted by the same IEBC as currently constituted? The Court has 21 days to give its detailed judgment, while the new elections have to be held in 60 days. Does that give enough time for the current or reconstituted IEBC to make the necessary corrective actions should they be needed? Will the contestation be confined to the presidential election, or will it open a pandora’s box of endless and costly litigation over the other offices contested in the General Elections—for county governors, members of county assemblies, senators, special women representatives, and members of parliament?
The Court’s decision also shines an unsavory light on the dubious role of international election monitors including those from the European Union, the Commonwealth, the African Union, and the USA’s Carter Center that were quick to endorse the results of the presidential elections. Altogether, there were at least ten international observer missions that largely hailed the elections as free and fair. A similarly blinkered view was echoed in the so-called international media as evident in an editorial in The New York Times. There were of course honorable exceptions such as the long critical article on the Kenyan elections in the latest issue of The New York Review of Books. Interestingly, soon after the Supreme Court announced its decision, diplomats representing two dozen Western countries in Kenya praised “the Court’s independent review,” for demonstrating “Kenya’s resilient democracy and commitment to the rule of law.” They were trying to salvage the discredited Western democracy monitoring enterprise.
Kenya’s civil society organizations were more divided in their evaluation of the integrity of the elections. They, too, have lessons to learn. Clearly, the custodians of democracy in Africa cannot and will not be outsiders, especially not those from EuroAmerica whose ideological and geopolitical interests often trump commitments to democracy in the global South. Africa carries the additional burden of racist stereotyping and denigration in the Western imaginary. International organizations including the United Nations cannot guarantee African democratization no more than the Trusteeship Council of the League of Nations promoted African decolonization.
Democracy in Africa can only be promoted by the five estates within each country—the executive, legislative and judicial branches of government properly and effectively discharging their respective roles as well as the media and civil society maintaining eternal vigilance of hard won democratic freedoms, rights, and responsibilities. The sixth estate, comprised of subregional and regional agencies, is potentially another critical underwriter of democratization, so long as they desist from the age-old dishonorable habit of electoral rubber stamping in the pursuit of presidential rather than people’s pan-African solidarity.
The lessons for the rest of the continent are clear. I suspect many in Gabon, Zambia, Uganda, Burundi, Rwanda, and Angola to mention just a few countries that have recently held elections wish they were Kenyans. I believe large numbers of Africans at home and in the diaspora will hail Kenya for this historic decision. Unfortunately, many live in countries without robust judiciaries to protect the citizenry from electoral irregularities and illegalities. The Supreme Court in Kenya has reassured the country’s citizens of the integrity of their votes.
The lessons of the Kenyan elections go beyond Africa. Numerous comments in The Washington Post on the annulment of the Kenyan presidential election compared the USA elections unfavorably to Kenya’s. In the last sixteen years American elections have given its people and the world two presidents who lost the popular vote. The first was President Bush who was crowned in 2000 from the Hanging Chads of Florida by a highly politicized and partisan Supreme Court. The second is the incomparably incompetent and unpopular President Trump who ascended to office in 2017 thanks to an outmoded and undemocratic system of the Electoral College. Neither outcome would be possible in Kenya’s electoral system that requires the winner to garner 50+1 and 25% of votes in at least 24 of the country’s 47 counties, and now as demonstrated by an independent and non-partisan Supreme Court.
September 1 will be remembered as the day Kenya’s democratic constitution became fully alive. The rest of the continent can only hope for their own moments of progressive constitutional, electoral and political reckoning. Thus whatever happens in the new presidential elections, Kenya has already made history for itself and for our democratically challenged continent. Perhaps the country that invented the electronic banking system of Mpesa will export to struggling democracies and stubborn dictatorships on the continent the model of accountable, transparent, credible, free, and fair elections undergirded by a strong and independent judiciary and vibrant civil society.