Kenyan Politics, Judicial Activism And Lessons For Africa (1)

By Raymond Nkannebe

While millions of Kenyans formed long orderly queues outside polling stations across the country on August 8, 2017 to vote in the presidential and local elections, little did they know that such exercise, the peak of their constitutional right as citizens would become a somewhat exercise in futility as the judgment of the Supreme Court of Kenya, last week Friday, made of it.

Following a petition submitted by Mr. Raila Odinga and his National Super Alliance Party, challenging the result of the election on August 18, 2017, exactly a week after the Kenyan Independent Electoral and Boundaries Commission had announced the incumbent Uhuru Kenyatta as the winner of the keenly contested poll, a six-man panel of the Kenyan Supreme Court led by the Chief Justice, David Maraga, in a majority decision declared the result of the election, “invalid, null and void” after siding with the petitioner who had argued that the vote had been electronically manipulated to pave the way for the incumbent president; and thereafter ordered a rerun  within 60 days.

It was doubtless, a bold decision coming from a Kenyan judiciary notorious for corruption and which had been battling to redeem its battered image in recent times. The petition therefore presented a veritable window for the judiciary to seize and assert its independence and autonomy after it came under intense criticism for throwing out a similar petition filed by Odinga in 2013 following a largely rigged electoral process, and it left no one in any doubt about that.

The petitioner, Raila Odinga, a former prime minister currently in his fourth run for the presidency following the decision of the court, has been stunned to his marrows. In a brief remark after the verdict was handed down, the taciturn septuagenarian captured his sentiments in the following words, “I am happy to be a Kenyan today. It is a historic day for the people of Kenya and by extension, the people of Africa. This is a precedent setting ruling, and the first in the history of African democratisation for a ruling to be made by a court nullifying an irregular presidential election”.

The reaction of the incumbent president has been one of shock and anger. In an address to the nation, the drowsy-looking son of the founder of modern Kenya, Jomo Kenyatta, urged all Kenyans to be peaceful but not without taking a swipe at the Supreme Court justices by accusing them of going against the will of the millions of Kenyans whom he said queued and made their choices.

Kenyan politics, much like the politics of most developing nations, is notorious for thriving on violence usually fuelled by the peculiar ethnic configuration of the East African nation and usually exacerbated by the recurring cases of electoral malpractices at election periods engineered and masterminded by the incumbent through surrogates in order to foster the Kikuyi rule  and to prevent the emergence of a Kenyan president from the minority Luo ethnic group in a peculiar socio-political environment punctuated by the geopolitics of the Kikuyi and Luo speaking ethnic groups.

In 2007, following the general election which many observers were unanimous in their position that it was rigged against the unrelenting Odinga, in favour of then president Mwai Kibaki, nearly 1,300 persons lost their lives when some of the supporters of Odinga went on a looting and killing spree in the ruling party strongholds and when gangs backed by ruling party officials fought back, the ensuing mayhem provoked a cesspool of violence that left more than a thousand people dead and caused thousands to flee their homes not forgetting the near shutdown of the East African nation’s economy which thrives on transport from the Kenyan coast.

In 2013, sequel to the manifestly flawed presidential election that brought the incumbent Uhuru Kenyatta to the helm of affairs, pockets of violence erupted in many Kenyan towns and slums which were quickly quelled by security forces to avoid a repeat of the ugly experience of 2007. The just-concluded  election is not excepted in this seemingly unending cycle of violence that pervade the Kenyan electoral experience.

Preliminary to the August 8 election, the brutally tortured corpse of the electoral commission I.T. manager, Mr. Chris Msando, was found in a bush outside Nairobi in what appeared to be a politically orchestrated killing unconnected with  the election. Also on the day of Kenyatta’s “victory”, local and international media reported spontaneous protests and sporadic lootings in Odinga strongholds. Days after the result of the now voided election was announced, reports of special police units cracking down on Odinga’s strongholds on the trumped up charges of inciting violence left no fewer than 24 persons dead. In the lakeside city of Kisumu, international media reported house-to-house beating and shooting of people with no fewer than 10 deaths recorded and several hundred others beaten and/or escaping with gunshot wounds. There was a particular pensive report of a nine-year-old hit by a stray bullet in Nairobi while playing on her balcony. There was also the story of a six-month-old beaten to death in her own house while in her mother’s arms.

And the reports of five corpses discovered floating in Lake Victoria with at least one of them with gunshot wounds all go to substantiate the fact that the internal politics of Kenya has been one characterised by bloodletting carried out by government backed security forces and ethnic militias on either side of the two major ethnic groups that make up the nation, popular for its huge wildlife and tourist credentials.

The crux of the petition filed by Odinga bordered on a number of complaints to wit: that nearly half of all the votes cast had been tampered with; that NASA agents who were entitled by law to observe the voting and counting had been thrown out of polling stations in Kenyatta strongholds and that secret unofficial polling stations had transmitted fake votes.

Whereas the United States and Kenya’s other donors had invested some $24m in an electronic tallying system designed to prevent interference and improve the authenticity of results by scanning and sending the results of votes collected across all polling stations after representatives of all political parties have signed a form known as 34A certifying the result collected from count, to the electoral commission headquarters in Nairobi, the breakdown of the system across all the polling stations in controversial circumstances  necessitated the sending of all votes collected at polling stations vide  text message to the electoral body for collation; a situation which members of Odinga’s party insist, laid the foundation for the doctoring of results received across polling stations and upon which the Kenyan apex court reached its decision.

But all the foregoing couldn’t have been mere coincidences. To be sure, there were ominous signs that “something weird was going on”, as Helen Epsten of the The New York Review put it in her article entitled, Kenya: The Election and the Cover Up. A month earlier, Kenya’s electoral commission had contracted a Dubai-based publication firm, Ghurair, to print ballot papers for the election but after newspaper reports linked the company to Kenyatta, a court order at the behest of the Odinga camp mandated the electoral commission to use a different firm; an order which was flagrantly disobeyed by the electoral commission citing exigencies of time.

To be concluded

Nkannebe, a lawyer and public affairs commentator, wrote in from Enugu viaraymondnkannebe@gmail.com