If you’ve ever wondered why no court in Africa has been bold enough to annul a presidential election, the actions and words of Uhuru Kenyatta after the result of the August 8 election, in which he was declared winner, was annulled by Kenya’s Supreme Court would provide the answer. Amidst the allegations of rigging and protests by the NASA opposition, Mr Kenyatta urged the opposition to take their complaints to the courts and not to the streets. “If there are those who feel aggrieved and they are not willing to accept, there are also constitutionally laid-down procedures.” The opposition did go to court and secured an unlikely victory. Then the tone of Mr Kenyatta changed. After reading a prepared text that he respected the decision of the court even though he disagreed with it, Mr Kenyatta went bellicose hours later branding the judges “crooks” and vowing to “fix” the court.”Every time we do something a judge comes out and places an injunction. It can’t go on like this,” he said.
“I think those robes they wear make them think that they are more clever than the rest of us Kenyans.” Questioning the judges’ legitimacy, he asked: “Who even elected you? He also could not resist taking a direct aim at the Chief Justice. “Maraga thinks he can overturn the will of the people. We shall show you… that the will of the people cannot be overturned by a few people.”
This represents the real danger for the judiciary or even the parliament in African democracies. Despite the constitutional provisions for and so-called guarantees for separation of powers, functions and personnel, the big man or president continues to hold absolute sway and continues to validate Leopold Senghor’s argument that it is un-African to share power. The truth remains that our institutions are so weak that players cannot be compelled to obey the rules of the game; and, the constitutional guarantees are never absolute as they still give the big man enough room to interfere with the workings of other arms of government. One common way is to allow the president to control the funding of these institutions. And, of course, he who controls the purse string ultimately controls the institution.
It is not surprising therefore that judges in Africa have been very reluctant in annulling presidential elections. In Nigeria, for instance, the courts have often shied away from voiding the elections even when evidences of fraud have 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. Thus, the rulings have always been that the elections 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.
Consequently, this has emboldened ruling parties to blatantly rig elections knowing the judiciary will be reluctant to void such elections. In the case of the Kenyan election, the 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.
But it appears the stage had already being set for the rigging of the election with the kidnap, torture and murder of Chris Msando, the Independent Electoral and Boundaries Commission (IEBC) Information Technology director, just over a week to the polls and just before a systems audit was scheduled.
What is more, even the IEBC was enmeshed in leadership crisis with the Chairman questioning the Chief Executive why a username was created in his name without his consent, why expensive satellite phones procured to transmit results failed to work on election day, and why a porous file server system was used to transmit results?
But from experience, such reasons are not usually enough to invalidate elections in Africa. Kenya’s 2013 election was similarly controversial but was upheld by the same Court. Given that elections in Africa are usually prone to disputes and violence, even international election observers are often happy to endorse deeply flawed but peaceful elections.
One can then understand the shock and anger of Kenyatta at the decision of the Supreme Court. But he is not deterred. He is determined to win the re-run elections by hook or crook and knows the worst that can happen is to form a government of national unity with him as president. Then, he will have enough time to “fix the problem in the judiciary.”