Despite reasons given for reversed poll, Kenya’s Supreme Court attracts questions
Debate is on whether judiciary has overstepped its mandate
Yesterday, the Supreme Court of Kenya finally presented its reasons for nullifying the August 8 presidential election results.
The importance of the judgment notwithstanding, it was overtaken by a debate over the proper separation of the judiciary and politics.
Core to the court’s finding is that elections are not just about numbers but also about the process followed to arrive at the expression of the will of the people.
The court was at pains to assert that no election process can be acceptable if it does not meet the values outlined in the constitution – accuracy, accountability, transparency, verifiability and simplicity.
Given the elaborate laws providing for the transmission and verification of election results, the court held that the Independent Electoral and Boundaries Commission (IEBC) failed to abide by the letter and spirit of the law.
It was not a failure of technology that led to the IEBC failing to transmit results in line with the prescription of electoral laws of that country, but a failure on the part of the IEBC to make provision for voting centres that had no access to 3G and 4G networks necessary for transmitting results.
And so the court agreed with the opposition that the IEBC acted as a law unto itself. Although the court held that no election is perfect, it would appear that the use of technology in elections opens up a debate for the kind of process that is to meet the acceptable threshold of freeness and fairness.
And thus simplicity is more desirable in any electoral process as it makes adherence to the principles of transparency and veracity easier.
Legal experts will shed more light in days following on the robustness of the court’s reasoning and findings. But that is not my concern here.
The Supreme Court of Kenya’s nullification of presidential results not only put Kenya’s electoral processes on trial but also put Kenya’s judiciary on trial.
Many on the continent hailed the Supreme Court for having the courage to find in favour of the opposition.
This it did against declarations by myriad election observers that found the election process met the acceptable standards of freeness and fairness.
But it also did it against the backdrop of a perception throughout the continent that the judiciary is subservient to the executive.
Although their judgment was to be made on the basis of legal considerations, its implications are deeply political. By virtue of being a judgment about elections, the case put the court judges on the political stage.
As such, the public discourse in that country has been dominated by wrangling over whether the judiciary is above politics or partisan.
The question remains whether an appeal to judicial independence gives judges licence to wittingly or unwittingly weigh in on political affairs?
A day before the reading of the full judgment, Chief Justice David Maraga presided over a press conference, responding to attacks on the judiciary.
He not only lashed out at Kenyans protesting against the judiciary but he accused the inspector-general of police of failing to provide adequate protection to the judiciary, which could be seen as a direct attack on the executive.
Several days before that, Maraga and his colleagues snubbed the opening of the 12th parliament where President Uhuru Kenyatta gave an address. The irony is that opposition MPs also snubbed the event.
There may be no link between the judges’ actions and those of the opposition... But the perception has been created and that’s enough.
Kenyans are now left to worry not only about the integrity of the IEBC and electoral processes but with a shadow of doubt over the objectivity of the final arbiter – the judiciary.