THE KENYAN JUDGEMENT
THE first week of September 2017 will go down in the annals of history as an epoch making week in Africa; the Kenyan Supreme Court in that week nullified the election victory of an incumbent president in a historic ruling of four against two which was the first in Africa; probably even in the whole world.
The decision of the Kenya Supreme Court was announced on a Friday and some people said this was the same day on which Jesus Christ was crucified. Of course there is no moral equivalent between Jesus’ crucification and annulling of an election, which was competed for by mortal men.
Before going deep into discussion of this milestone judgement, it may be interesting to look at the definition of nullifying and a bit of history of the nullification doctrine. The word nullify is defined as “make legally null and void or invalidate, to deprive something of value or effectiveness or make futile or of no consequence.” The synonyms include; repeal, reverse, rescind, revoke, disallow, cancel, abolish, countermand, do away with, terminate, quash and abrogate.
Besides judges, parliaments or governments can make decisions that nullify laws. One such living example from history which scholars refer to in many essays on nullification is the attempt by the South Carolina state assembly in southern United States of America to annul a federal tax which led to a serious crisis for President Andrew Jackson.
Sometime in 1828, the Congress of the United States passed a protective tariff, which infuriated the deep southern states whose economies were based on agriculture. The northern states of the USA had industrialised at a faster pace than the southern states and sought protection against cheaper imports from Europe, especially Great Britain.
British industries at that time depended very heavily on raw materials from North America. The protective tariff enacted by the USA Congress made British textiles very expensive for American buyers and that in turn led to a reduction of British demand for American raw cotton. The result was the South Carolina nullification controversy.
The Vice President of the United States at the time was John C Calhoun from South Carolina. Many in South Carolina thought that the tariff, which they considered punitive, was reason enough for the dissolution of the Union of the United States. However, Calhoun argued that the doctrine of nullification allowed a state to nullify any federal law that threatened its sovereignty.
The state assembly accepted Calhoun’s reasoning and thus The South Carolina Ordnance of Nullification was enacted on November 24, 1832. President Jackson reacted strongly and asked Congress to enact legislation permitting him to use federal troops to enforce federal laws in the face of nullification.
However, armed confrontation was avoided when Congress revised the tariff with a compromise bill which permitted the South Carolinians to back down without losing face. Many believe that President Jackson’s decisive action in support of the Union of the United States was the greatest moment of his presidency because if the nullification had succeeded, it may have led to secession.
Although the frenzy over the Kenyan judgement has died down a bit, we are still yet to witness the full impact of the nullification. The Kenyans go back to the polls on October 17 and the camp of opposition leader Raila Odinga is calling for the replacement of the head of the Kenya Electoral Commission.
A statement signed by Wafula Chebukati, chairperson of the Independent Electoral and Boundaries Commission released on 4 September announced the new election date stating that “this is in conformity with the Supreme Court decision annulling the presidential election held on 8th August 2017.”
Chebukati said that only President Uhuru Kenyatta and opposition leader Raila Odinga who brought the court challenge would participate in the fresh election. Kenyan watchers are extremely worried about the potential of post-election violence after October 17.
Will either side accept the outcome? One of the major worries of many commentators is the role of both local and international observers. They are not sure if the observers will be able to convince the contestants to accept their verdict. The Supreme Court ruling did not only nullify the election, but also effectively invalidated the observers’ reports. Most observers had judged the annulled election as free and fair.
Of interest has also been the reaction in most African countries to the Kenyan judgement. Here at home in Zambia, some politicians were quick to ask our Zambian Judiciary to follow the example of Kenya. What is appalling is that all the commentators are narrowing their comments only on the failed petition by United Party for National Development president Hakainde Hichilema.
There can be no better expression of selfishness and lack of patriotism; Zambia is a leader in democratisation on the continent of Africa. To completely negate the good record of the country because of the failure of Mr. Hichilema’s petition is doing a lot of injustice to our country. At any rate, reasonable people should wait for the release of the full judgement before rushing to make comments.
This country is the first country in Africa to see an opposition party defeat a sitting president and witness peaceful handover of power. President Kenneth David Kaunda lost to then opposition leader Frederick Jacob Titus Mpundu Chiluba in 1991. Although Dr. Kaunda complained that the women did not vote, he handed over power peacefully.
Of course we had some post elections tension with the Black Mamba clandestine group being accused of bombing and threatening the peace which led to Dr. Kaunda’s arrest. The first republican president was released from detention after the intervention of his erstwhile friend, the then President of Tanzania Mwalimu Julius Nyerere.
In 2011, the Patriotic Front led by the flamboyant Michael Chilufya Sata defeated the Movement for Multiparty Democracy (MMD) and then President Rupiah Bwezani Banda, handed over power peacefully.
Presidential petitions are also not new to Zambia, we have had petitions before the Kenyans even thought of them. President Chiluba was petitioned on grounds of nationality while President Levy Patrick Mwanawasa was petitioned by the late founding leader of the UPND Mr. Anderson Kambela Mazoka.
The petition against President Mwanawasa took four years and it was then that the late Deputy Chief Justice David Lewanika proposed a time defined petition by a loser during the Constitutional Review Commission which led to inclusion of the current provisions in our constitution regarding the election, petitioning and swearing in of a president when there is a petition.
Apart from the presidential petitions, our country has a good record of petitions in parliamentary elections and Members of Parliament from both the governing and opposition parties have lost election petitions. It is therefore incongruous or inappropriate for any Zambian politician to fault our Judiciary in this respect.
If we look at the Kenyan petition critically, we can see that Raila Odinga went to Court with facts related to the conduct of the elections. These included turning away voters in the Kenyatta strongholds, forged results declaration forms, suspected hacking as the Independent Electoral Commission blocked the inspection of the servers, which they claimed, were domiciled in a foreign country. Odinga’s lawyers did a good job as they focused on the facts that were necessary to sustain the petition.
Compare the petition by Mr. Hichilema, it is a well-known fact that the lawyers failed their client lamentably. They spent a lot of time on preliminary issues and some of them were simply impudent and rude to the court.
And when we look at the conduct of the election itself, the petitioner’s party was more guilty of election violence. They turned away voters in their strongholds and even chased away returning officers. There was also the highly publicised attempt to hack the results which led to the Zambia Electoral Commission to revert to the more secure and verifiable manual tallying of votes.
At the end of the day, those who are discrediting our Judiciary because of the Kenya judgement in the Presidential Petition should think twice and realise that history puts Zambia ahead of many African countries where the conduct of free and fair elections are concerned.
Even our
Judiciary has done a lot better than many other countries.
What worries me is that it is the same mouths that have been talking since 1991. Their views are always contra and have never spoken on behalf of the common man. I have started wondering how these people survive. They enjoy opulent lives, but do not have traceable incomes. Are they living on the famous old label: His Master’s Voice?
Give Zambians a break. Footnote: Apologies to the followers of Troubleshooter. I missed last week because I was down with severe flu induced by my contact with some easterners. I am back and hope you will continue with your patronage while I do my best to avoid wise men from the east.
Yours truly Troubleshooter ecchipalo@yahoo.co.uk / pentvision@gmail.com / ecchipalo@icloud.cloud.com