Unpacking political implications of Kenyan Supreme Court judgment
Given the fact that past elections in Kenya were worse off in terms of violence, what factors could have influenced the judges in coming up with an adverse report of an election process that was fairly peaceful and endorsed as free and fair by several international observers?
ON FRIDAY, September 1, 2017, the Kenyan Supreme Court annulled the presidential election outcome citing irregularities and breach of electoral laws of that country.
The Independent Electoral and Boundaries Commission (IEBC) had declared President Uhuru Kenyatta the winner in a contest endorsed by several international observer teams.
Former presidents, Thabo Mbeki of South Africa and Ghana’s Dramani Mahama were some the notables, who in their reports indicated that the result was a true reflection of the people’s will.
However, in a shock ruling, the first of its kind on the continent, Kenyan Chief Justice David Maraga said: “The presidential election held on August 8 was not conducted in accordance with the constitution.”
While Kenyan opposition leader Raila Odinga and Zimbabwe’s Morgan Tsvangirai of the MDC-T hailed the Kenyan Supreme Court ruling as the triumph of democracy, many questions linger in the minds of many as to the efficacy of the judges’ rationale in annulling an election largely viewed by observers as the true expression of the will of the Kenyan people.
It is shocking that most pundits and journalists seem afflicted by historical amnesia in their praise of the Kenyan Supreme Court.
Any thinking observer with a keen sense of history will naturally be puzzled as to how the learned judges concluded that the presidential election was not free and fair, especially when one draws parallels with previous elections held in that country.
After the 2007 post electoral violence when 1 000 Kenyans were killed, then Kenyan president Mwai Kibaki was forced to enter into a coalition with opposition leader Odinga. The former became the president while the later became the prime minister.
Just like in Zimbabwe, the coalition government was the brainchild of international observers and was meant to curb inter-party violence.
As one who had tested power during the coalition government, Odinga was to challenge the 2013 outcome, which brought President Kenyatta to power. His electoral petition was quashed by the Supreme Court.
Fast forward to 2017, the Supreme Court challenge is not lost in the mind of Odinga, who under pressure from his handlers again challenged the electoral outcome.
But Odinga does something incongruent with judicial prudence. Conscious of his previous electoral petition failures, he pours scorn on the credibility of the Supreme Court bench.
Given the fact that past elections in Kenya were worse off in terms of violence, what factors could have influenced the judges in coming up with an adverse report of an election process that was fairly peaceful and endorsed as free and fair by several international observers?
In trying to understand the judges’ reasoning, one can refer to what social scientists call subjective probability and the gamblers fallacy. In both instances, there is no real scientific calculations employed to come with a decision. The decision is mostly influenced by past experience and how one relates to that past.
Thus, subjective probability is derived from an individual’s personal judgment about whether a specific outcome is likely to occur. It contains no formal calculations and only reflects the subject’s opinions and past experience. Subjective probabilities differ from person to person, and they contain a high degree of personal bias.
An example of subjective probability is asking a Dynamos fan, before the match with CAPS UNITED chances of his or her team winning. Without absolute mathematical proof, the fan is likely to say his or her team’s prospects are more than 50 percent.
This predication can be predicated either on past painful experiences of losing to the same team, or simply the fact that his or her term has won more matches against the opposing team.
But even if individual beliefs can be rationally explained, it does not make the prediction an actual fact. It is often based on how each individual interprets the information presented to him.
With a history of having squashed Odinga’s previous electoral challenges, one is bound to suggest that far from exercising judicial prudence, subjective probability could have been at play.
Besides subjective probability, the judgment can also be analysed from the perspective of the gamblers fallacy or the Monte Carlo fallacy. Gamblers fallacy refers to a situation wherein an individual has a mistaken belief that beginning of a given random phenomenon is less likely to occur following an event or a series of events.
Referring to the same phenomenon, a columnist in Ghana Nana Yaw Osei recently reasoned that gamblers fallacy is problematic in that past events cannot change the probability that certain events will happen in future.
He gave the example of a series of 10 coins landing with one side up and according to the gamblers fallacy, one might predict that the next coin flip will more likely land with the other side up.
“This kind of thinking is a prime misunderstanding of probability because the possibility of a fair coin turning up is always 50 percent,” writes Nana Yaw Osei.
In the case of the Kenyan scenario one is bound to ask whether there were significant irregularities to overturn the electoral fortunes of President Kenyatta, or were the judges under the influence of the gamblers fallacy?
Judges are human beings and not immune to the gamblers fallacy. So what are the gamblers fallacies that could have been at play? First, in 2013 the same judges threw out Odinga’s petition, so in 2017 they decided to give him the benefit of doubt.
Second, Odinga had cast aspersions over the judges’ credibility, and thus there could have been the need to prove him otherwise.
Third, the judges could have been motivated in wanting to make Kenya the first country in Africa to annul the electoral victory of the incumbent president.
The implications for this judgement are far reaching. The continent is likely to see an avalanche of frivolous court appeals by losing candidates, who will think the courts will likely rule in their favour.
Where in the world have elections been free of irregularities? Even the US, which prides itself as the paragon of democracy is still grappling with the issue of foreign meddling in its electoral process.
What is likely to be the reaction of President Kenyatta supporters if he loses the incoming election? How far can the judges be influenced by the gamblers fallacy in annulling the results?
Assuming President Kenyatta wins again, will Odinga challenge the outcome in the Supreme Court? Will he not he be at the mercy of the gamblers fallacy as the court would not want to be seen to be continuously nullifying the electoral results.
Conscious of the gamblers fallacy, is it not plausible that more irregularities are likely to occur and this may favour President Kenyatta in that the courts will most likely not declare the outcome null and void for fear of making the whole process moribund and comic?