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Home Law Electoral Justice in Kenya and Nigeria - Femi Falana

Electoral Justice in Kenya and Nigeria – Femi Falana

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Both Nigeria and Kenya have been battling with electoral malpractice and political violence for over a decade. The 2007 general election in Nigeria was truly a “do or die” affair as declared by President Olusegun Obasanjo. Hundreds of people were killed by security forces for protesting the brazing manipulation of the results of the general elections. The Ahmed Lemu presidential panel set up by President Goodluck Jonathan to probe the mayhem that greeted the announcement of the result of the 2011 presidential election found that 943 people were killed while 838 others were injured. While the Federal Government paid over N10 billion as reparation to the victims of the riots, it failed to prosecute the 626 who were arrested in connection with arson, culpable homicide and other grave offences perpetrated due to official impunity.

2007 Post Election Violence in Kenya.

In 2008, the brutal killing of over 1000 people in Kenya over post election violence led to the setting up of a panel of inquiry headed by Mr. Kofi Anan, a former Secretary-General of the United Nations. Based on the report of the inquiry Messrs Uhuru Kenyatta and William Ruto were charged with crimes against humanity at the International Criminal Court (ICC) for allegedly masterminding the politically motivated killings. Notwithstanding the election of both suspects as President and Vice President of Kenya respectively in the 2013 general elections the cases continued and were eventually struck out due to want of diligent prosecution.

Many Nigerian commentators have commended the Supreme Court of Kenya for the revolutionary decision to annul a presidential election. Not unexpectedly, such critics have censored the Nigerian judiciary for invoking the nebulous doctrines of substantial compliance to uphold the results of fraudulent elections. Some lawyers have gone to the extent of blaming Nigerian judges for the undue delay in the hearing of election petitions. With respect, the comparison of the decisions of the Supreme Courts of Nigeria and Kenya on election petition is rather odious. Hence it has become necessary to review recent developments in the electoral jurisprudence of both countries.

2007/2008 Election Violence in Kenya.

Fidelity to the Kenyan Constitution

However, based on gross irregularities and violence which had marred the 2007 general elections which led to political violence in Kenya the members of the political class decided to use the instrumentality of the law to sanitize the political system. Thus, in 2010, Kenya decided to enact a new Constitution through a popular and democratic process. At the end of the day, the Kenyan people produced one of the best constitutions in Africa. To prevent a delay in the hearing of election petitions section 140 of the Constitution stipulates that presidential election petitions shall be shall heard and determined within 14 days. It is pertinent to recall that the Supreme Court of Kenya had dismissed the petition filed by Mr. Raila Odinga against the 2013 presidential election won by President Uhuru Kenyatta on the ground that it was conducted in accordance with the Electoral Act. See Raila Odinga & 2 others v Independent Electoral & Boundaries Commission & 3 others [2013] EKLR.

That decision was largely influenced by Nigerian cases which were relied upon by the Court. But the Kenyan parliament decided to review the electoral system by enacting the Electoral Act 2016 to provide for electronic voting and the appointment of the chairman and members of the Independent Election and Boundary Commission through an interview conducted by a selection board as well as the Offences Act 2016 to provide for electoral offences and penalties. It was on the basis of such progressive review of the relevant laws that the Supreme Court had no difficulty in upholding the petition of Raila Odinga against the election of President Uhuru Kenyatta held in Kenya on August 8, 2017. See Petition 1 of 2017.

Although the petition was filed on August 18, 2017 the Supreme Court delivered its judgment two weeks later. That was made possible with the aid of technology. The Court allowed a live coverage of the proceedings by the media. Instead of spending precious time on calling hundreds of witnesses to give oral evidence or adopt written depositions and be cross examined by opposing lawyers the electoral body was ordered by the Court to produce the uploaded results of the election. The registrar of the court was directed to collect the results and other election materials from the IEBC for examination by the parties and the court. In the historic judgment the court validated electronic voting. However, the court found that the massive irregularities in the transmission of election results had compromised the integrity of the election.

In annulling the results of the presidential election the Supreme Court found held that the IEBC had “failed, neglected or refused to conduct the presidential election in a manner consistent with the dictates of the Constitution.” Although the “reasoned and considered judgment” would be made available not later than 21 days the summary has confirmed the unqualified commitment of the court to the rule of law. Before the judgment was delivered Chief Justice Maraga had rightly set the tone for the business of the day when he noted that “the greatness of any nation depends on its fidelity to its Constitution and adherence to the rule of law and above all respect to God.”

Since it is the first time that any court has annulled the result of a presidential election in Africa the judgment has far-reaching implications for democracy and rule of law in the continent. Although the details of the judgment have not been provided the summary of the findings and orders made by the Court have sufficiently confirmed the independence of judiciary of Kenya. It is particularly significant to note that the Court rebuffed pressures from local and foreign economic interest groups who had wanted a judicial endorsement of the malfeasance which marred the presidential election.

Raila Odinga

While reacting to the judgment the petitioner, Mr. Raila Odinga of the National Super Alliance (NASA) said that it “marked a historic day for the people of Kenya and by extension for the people of the continent of Africa.” He faulted international election observers who had attempted, in their reports, to legitimise the electoral fraud by saying that the election was credible, fair and free. One of the election monitoring groups, the Jimmy Carter centre led by former United States Secretary of State, Mr. John Kerry was particularly patronizing in its endorsement of the results of the election. While asking Mr. Odinga to move on and stop protesting the election results Mr. Kerry said the election was fair and free.

The election observers of the Commonwealth and African Union equally claimed that the election was credible and that its results should not be challenged. But the judgment of the Supreme Court has questioned the credibility of the choreographed sanitation of the fraudulent election results by the so called representatives of the international community. Not a few interest groups called Mr. Odinga a bad loser for approaching the Supreme Court for legal redress. But it turned out that the filing of the petition doused tension in the country as angry protests had led to the killing of not less than 24 people by security forces.

President Kenyatta’s Attack on Judges

In his initial reaction to the verdict, President Uhuru Kenyatta said that even though he disagreed with the decision he would respect it. But in an angry attack of the judiciary at a rally held in Nairobi later that day the President said: “Every time we do something, a judge comes out and places an injunction. It can’t go on like this…there is a problem and we must fix it. I think those they wear make them think they are more clever than the rest of Kenyans. 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.” As if that was not enough, the President called Chief Justice Maraga and his colleagues “wakora” (meaning crooks or squirrels in Swahili language).

Apparently disturbed by the highly contemptuous statement of the Head of State the Kenyan Law Society has promptly criticised the official threat to subvert the independence of the judiciary and intimidate independent minded judges in the country. On its own part, the Kenyan judges have joined issues with President Kenyatta over the veiled threat credited to him. In a statement issued by the Kenyan Magistrates and Judges Association the judges condemned what it called “assault on the decisional independence of the honourable judges.” Since politically motivated killings are rife in Kenya the Pan African Lawyers Union (PALU) should request President Kenyatta to guarantee the security of the life of each of the 4 judges who handed down the majority judgment of the court as well as other judges who might have granted injunctions against a government that believes that its actions cannot be overturned by any court, even in the face of illegality

President Uhuru Kenyatta

However, in attacking the judgment of the Supreme Court Mr. Kenyatta exposed himself to serious embarrassment as both himself and the Independent Election and Boundary Commission (IEBC) as co-respondents failed woefully defend the integrity of the election when given the opportunity to do so by the Court. Apart from the refusal of the IBEC to produce all the election materials in defiance of the order of the Court the respondents’ lawyers had urged the Court to hold that the irregularities identified and proved in the petition were not sufficient to vitiate the results of the election. But after a painstaking review of the evidence and the submissions of the petitioner and respondents’ lawyers the Court came to conclusion that “the election was not conducted in accordance with the Constitution, rendering the declared results invalid, null and void.” Consequently, the Court ordered the IBEC to conduct fresh presidential election within 60 days.

Sequel to the annulment of his election Mr. Kenyatta ought to have been ordered by the Supreme Court to vacate office since he lacks any legitimate claim to continue to occupy the Presidency of Kenya. But fortunately for him, he was not found to have been directly involved in the electoral malpractice which led to the annulment of the presidential election. For that reason, he shall remain in office as President in an acting capacity pending the emergence and swearing of a new President produced by the fresh election pursuant to sections 134 and 142 of the Constitution. However, to ensure the success of the fresh election which has been ordered by the Supreme Court the IEBC should be reconstituted. Having been judicially indicted in the management of the general elections the IEBC Chairman, Mr. Wafula Chebukati and other members of the electoral body should be sacked and prosecuted under the Election Offences Act, 2016.


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