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Reason Wafawarova
The nullification of the Kenyan Presidential election has clearly created global interest, not least because it has been seen as the triumph of the rule of law by many observers, but also more importantly because it has been seen as a great stride in correcting the perceived wrongs in the administration of elections across the African continent. The continent has no lack of disgruntled opposition parties.

Literally all of Kenya’s multi-party elections since the mid-nineties have been in dispute, with the 2007 election particularly problematic to the extend of causing great harm through the post election violence that ended with four leading personalities indicted for trial at the Hague, among them President Uhuru Kenyatta and his Deputy William Ruto.

The violence claimed over a 1 000 lives, and we are told at least 20 people lost their lives after the announcement of the result of the August 8 election this year. We know that one life lost to political violence is one life far too many, and this is partly why we have to look at the judgment leading to the nullification of the poll very closely. A stray bullet killed an innocent little girl because people were protesting.

Last week I submitted on this column the arguments for the two dissenting judges, and this week it is important that we look at how the four judges reached the decision to nullify the Presidential election.

The journey to democracy has been a rather long one for Kenya, like a marathon. Kenyans would say marathons are indeed their identity to the world, their thing. However, the political journey towards democracy hasn’t been that shining as the gold medals Kenya collects freely at the Olympics.

Some Kenyans are bragging that the judgment to nullify the presidential election was “the most decisive victory for African democracy,” to quote writer Nanjala Nyabola. But was it?

Nyabola was looking at the 4-2 Supreme Court decision that attracted world attention in early September – a decision that declared the presidential election “was not conducted in accordance with the Constitution and was null and invalid”.

We now have dates for the rerun of the election in mid-October. This re-run is going to be costly in terms of financial resources and time, but those in favour of the court ruling are more than happy to pay the price for what they believe is a clear sign of a maturing democracy. Others are simply happy they will have another go at the presidency.

This is important because there is a perception that the justice systems in African countries are often manipulated in favour of incumbent governments, and clearly what happened in Kenya is seen as a spectacular example of judicial independence.

While the Kenyan Supreme Court has implied that August 8 election was deeply flawed, the post election reports from observer missions created weighty assumptions that the electoral process itself was free, fair, and credible. There is no evidence that the voting process wasn’t.

There is a general assumption that the biggest hurdle to free and fair elections in Africa is primitive behaviour like intimidation, violence, intolerance, fanaticism, ballot stuffing, and so on and so forth. So observers have a perception on how democracy has to work in Africa, and that perception is that once we begin to conduct our lections peacefully and civically we suddenly become democratic.

No doubt the Kenyan election was held peacefully; and candidates across the divide preached unity of purpose and the message of Kenya first, leadership second. The counting of the votes at polling stations was also largely above board and transparent, as was the announcing of elections at that level.

It was just hard for observers and other onlookers globally to appreciate where disgruntled critics of the election outcome were coming from. It was easier to dismiss these critics, many of them sympathisers of Raila Odinga and his NASA coalition; as “perennial losers”. Raila Odinga has lost the presidential race three times in the past. It is not easy to understand easily the arguments of such a seasoned second best.

The argument naturally turned tribal in Kenya as is often the case in most African countries.

Critics were roundly seen as tribalists by the voters from the “winning” side in Kenya, and even now the debate carries with it massive tribal sentiments.

Are external observers after good enough elections in Africa where no one is harmed or killed; or should they demand more than just peaceful elections?

These are pertinent questions that we must look at.

When one looks at what the Supreme Court judges looked at and what the international observers looked at, it appears the former looked at constitutional procedure, while the later focused on peace and tranquillity.

To those who lost the elections, the international observers were simply forcing on Kenyans a problematic electoral process as dignified just because they did not see anyone violated or harmed.

The four Supreme Court judges seek to expose through their judgment how faulty and minimalistic the logic of peaceful elections can be.

According to the Supreme Court ruling, what international observers noted to be irregularities and skirmishes “not significant enough to alter the will of the people” were the real issues threatening the core of Kenyan democracy.

The Supreme Court did not interpret the petition from the discontented opposition as to do with who won, or who lost the election. The petition simply intended to test whether the election had indeed produced a winner who was worthy of the legal phrase “democratically elected”.

Uhuru Kenyatta most probably won the election; as most people believe; but was he democratically elected the president of Kenya? Procedure works like this:

Sealed examination envelope packages are supposed to be opened before candidates with all invigilators watching the process; not only to ensure that no other person has prior access to the examination papers before the examination date, but also to create a perception of credibility and integrity for the whole process.

If the Examination Presiding Officer opens the envelope somewhere on the way to the Exam room, does nothing else to the contents; and goes ahead to distribute the exam papers to candidates; the truth is the examination has gone ahead without any cheating that benefited any of the candidates, but the process can no longer be credible. No one can trust that process anymore.

This seems to be how the Supreme Court looked at the petition. The Court found out that the IEBC simply did not deliver on basic democratic principles of transparency and rule of law that should reasonably guide any election, and most certainly the electoral body wilfully departed from the provisions of the Kenyan Constitution; for reasons best known to the body itself.

The argument is peaceful elections without evident credibility cannot be democratic. The court vindicated the petitioners, who argued that Kenyans deserve free, fair and credible elections — not just a good enough violence and intimidation free election.

There are very interesting guidelines that have been given to international observers who have been invited to observe the re-run in mid-October. And new guidelines have also been mandated to the IEBC.

When one looks at the new guidelines they are more focused on internal procedural issues than they are on just ensuring the vote is peaceful. There is a lot of emphasis on polling station conduct, counting, tallying of votes, and more importantly transmission of electoral data.

In this ruling, the Supreme Court seems eager to remind the IEBC that its independence does not extend to it being able to choose and pick which parts of the Constitution to obey.

It appears the court in its findings was less than satisfied with the way electoral data was transmitted from the constituencies to the national tallying centre.

Although there has not been any notable contesting of the outcome itself, the opposition just managed to plant enough doubt in the credibility of the procedure. We may never come to have any meaningful figures contested because the need for that is now overtaken by events.

The detailed judgment report from the four judges will probably shed more light on why the outcome could not be upheld in the wake of what was raised in the opposition petition.

It was hard for the IEBC lawyers to explain in court why the core tools of electoral management as dictated by law, and publicly promised to the voter were not actually used during the election itself. While arguing that the website www.public.iebc.or.ke on which local and international reporting relied was “not the public portal,” they could not explain to the court what the website was, and why it existed in the first place.

At the end the ruling was about the glaring errors. On one hand the IEBC lawyers argued that while undeniable, the errors were just not enough to alter the election outcome; and on the other hand the opposition petitioners argued the errors did compromise the integrity and credibility of the whole system.

The opposition lawyers capitalised on the IEBC’s admission that its staffers did not use electronic transmission system they were required to, and instead relied on text messages and photographs of manually filled forms as sources of information.

The IEBC largely just ignored the procedural law in regards to the tallying of results. Although the Commission lawyers argued that all forms for reporting results were available in time for the announcement of the election result, they failed to explain why the IEBC was asking the opposition to “be patient,” while it was trying to make the forms available, as late as the 14th of August, well after the result had been announced.

The Court wanted to understand how the final result was generated on the basis of forms that were not available until several days after the election result had been announced.

The other issue was that of serial numbers. There was a sizeable number of forms provided by the IEBC which did not have serial numbers, and some were handwritten improvisations.

Although the Commission lawyers argued that these irregularities were too small to affect the election outcome, they could not answer the question, “If some of the forms have bar codes, then shouldn’t all of the forms have bar codes”?

The election was expensive at US$500 million, or $28 per person in taxpayer money. The assumption was that such money would suffice to bring the election closer to perfection. The Court could not be convinced that the money was not enough to get enough bar coded forms.

One thing that the ruling established was the reaffirming of judicial independence in Kenya.

History has been made, and Chief Justice David Maraga will go down in legal history as the first ever African Chief Justice to oversee the annulment of a presidential election, especially one unanimously endorsed as free and fair by international observers.

He will well be remembered for his summary statement:

“The greatness of a nation relies on its fidelity to the Constitution and adherence to the rule of law.”

There are many African countries whose governments grant to themselves the prerogative to obey selected parts of the law, many times acting with impunity, especially over matters political.

We must understand that laws are national, and they cannot be treated like unwanted foreign interference.

There has been no evidence provided that President Uhuru Kenyatta was complicit in any of the shortcomings of the IEBC, or that he directly benefited from the flaws more than he genuinely deserved in terms of the numbers of the people who voted for him.

However the law is the law, and the President has publicly pronounced his respect for it, much as he differs with the legal opinion of the four judges. Africa we are one and together we will overcome!!

-Reason Wafawarova is a political writer based in Sydney, Australia.