The Kenyan Supreme Court, in an unprecedented ruling supported by four of the six Supreme Court justices, annulled last month’s presidential election that returned Uhuru Kenyetta as president. Delivering the ruling, the Chief Justice, David Maraga, said the electoral commission had failed “to conduct the presidential election in a manner consistent with the dictates of the constitution” and declared the result “invalid, null and void.” He also ordered a new election to be conducted within 60 days.
This is a very brave decision in a continent that no court has been bold enough to annul a presidential election. In Nigeria where the courts have been called upon to adjudicate on disputes arising from the conduct of presidential elections in the past, the courts have often shied away from voiding the elections even when evidences of fraud has been established beyond doubt. The courts often hide under the guise of protecting national security and saving the nation from political instability and crisis that will be triggered by the voiding of elections to legitimise deeply flawed elections. Consequently the courts have found ways to explain away the its legitimisation of fraudulent elections by saying they substantially complied with the requirements of the electoral act and where cases of fraud have been proved beyond doubt, they argue that those cases are not substantial enough to affect the results of the entire elections.
By these acts of cowardice the judiciary in Nigeria and in most African countries have empowered ruling parties to go all out to rig elections knowing the courts will not have the courage to annul the elections. In the Kenyan case, more than a week before the elections, it was obvious enough that the ruling party intended to fully rig the election. Chris Msando, the Independent Electoral and Boundaries Commission (IEBC) Information Technology director, was abducted, tortured and murdered just over a week to the polls and just before a systems audit was scheduled. The goal, which appears to have been successful, was to get enough information on the Kenya Integrated Elections Management System (KIEMS) to manipulate the election.
Crucially also, Kenyan election laws require presidential results to be announced at the constituency level on Forms 34B. The transmitted results on Forms 34A by IEBC should match constituency results in forms 34B. Sadly IEBC’s results were not backed by forms 34A and nearly a third of the forms have irregularities. Luckily enough, the Kenyan Supreme Court did not shy away from doing what is right.
We salute the Supreme Court for that brave decision. As Chief Justice Maraga rightly noted, “The greatness of a nation lies in its fidelity to the constitution and the strict adherence to the rule of law.” Other African countries must learn important lessons from this judgement. The courts as the final arbiter in election matters, must ensure that elections are conducted in strict adherence to the electoral laws and constitutions and ruling parties or oppositions are not allowed to compromise elections. That is the only way Africa will deepen its democratic culture and respect the wishes of the people expressed through the polls.