Mature response to Kenya’s election ruling

QUITE EXPECTEDLY, and not without good reason, Kenya’s Supreme Court is being globally praised as an emerging protector of democracy following its ruling last Friday annulling the August election victory of President Uhuru Kenyatta.

The court, in a majority 4-2 decision, ordered that a new election be held in 60 days, which will likely mean another face-off between Mr Kenyatta, 55, and the long-time opposition leader, Raila Odinga, 72.

While lionising the court may be worthy, Mr Kenyatta, too, is deserving of commendation for his initial response to its decision, to which he clearly expressed his disagreement without being inflammatory. Jamaica, the majority of whose people are of African descent, have an interest in Kenya being peaceful and democratic.

In his oral ruling, Chief Justice David Maraga said the country’s election commission “failed, neglected or refused to conduct the presidential election in a manner consistent with the dictates of the constitution” and that the ‘irregularities affected the integrity of the poll”.

Much of the concern turned on how polling results were transmitted for tallying, which the opposition claimed happened without appropriate verification, potentially leading to fraud in favour of Mr Kenyatta, who won the initial contest with 54 per cent of the votes and a majority of more than 1.4 million.

The court’s ruling was novel for Kenya and Africa, where the judiciary tends to be deferential to leaders who often behave with impunity and defiance of their constitutions to stay in power – sometimes with rigged elections.

It is not surprising that Mr Odinga, the runner-up in Kenya’s last three presidential elections and who had previously failed to convince the courts of the merits of his accusations of fraud, hailed Friday’s ruling as a watershed development that set an “exceptional example for all of Africa”.

“Our judiciary now knows they have the power,” he said.

A joint statement by two dozen foreign missions in the East African country said the ruling “demonstrated Kenya’s resilient democracy and commitment to the rule of law”.

All of this may be true. But functioning democracies require that all partners respect due process; if they fail to play by the rules, democracy collapses, or becomes badly stressed and fractured, as has been the case in Kenya’s recent past. These problems are exacerbated when ethnic tensions come into play, such as in Kenya. For instance, a decade ago, 1,200 people were killed in the violent aftermath of disputed elections in which Mr Odinga, a Luo, lost against the incumbent, Mwai Kibaki, who, like Mr Kenyatta, is a Kikuyu. Two dozen people died after last month’s vote.

THE NATURE OF DEMOCRACY

It is in that context that we believe Mr Kenyatta’s post-ruling statement to be important. “The court has made its decision,” he said. “We respect it, (but) we don’t agree with it.”

But more important was Mr Kenyatta’s contextualising the development “as the nature of democracy” and urging “peace, peace, peace”. Put another way, his statement, as much as the judges’ decision, helps to legitimise Kenya’s court as a coequal branch of government and, thereby, a critical pylon in democracy’s foundation.

Mr Kenyatta’s, and Kenya’s, big test now is for the president to maintain this posture and for the election commission, for the next vote, to eliminate the flaws the court identified in last month’s election. Mr Odinga, too, has a responsibility to ensure that the environment in which the vote is conducted is free and fair and free from fear.