The Supreme Court of Kenya on Friday delivered a historic verdict for the people of Kenya and the rest of the African continent when it overturned the results of the August 8 presidential election that had been won by incumbent president Uhuru Kenyatta against protestations of his opponent Raila Odinga.
It was the first such ruling in Africa and only the third in the world!
In December 2004, Ukraine Supreme Court overturned the election of prime minister Viktor F. Yanukovich opposition candidate Viktor A. Yushchenko protested. It ruled that conduct of the campaigns and counting of the ballots had been marred by “systemic and massive violations” and could not be allowed to stand.
In July 2016, Austria’s Constitutional Court also overturned the presidential election in which Mr Norbert Hofer had lost to Mr Alexander Van der Bellen by just 30,863 votes. The court said election rules had been broken in a way that could have influenced the result even though there was no proof the count had been manipulated.
These three rulings say the process is as good as the outcome. This is a departure from previous rulings in which courts largely relied on the “substantiality test” to determine whether a presidential election result should stand or not. A legal challenge about this inclination in Uganda’s courts failed in the run-up to the 2016 election.
At least seven African countries have seen presidential election petitions filed but all were unsuccessful. In Kenya (2013), Uganda (2001, 2006 and 2016), Sierra Leone (2012), Zimbabwe (2013), Nigeria (2007), Zambia (2016) and Ghana (2012), parties challenged presidential election results but no court annulled the results declared by an electoral agency. In all the cases, judges found irregularities but still declined to nullify the election results, arguing that the substantiality test had not been met.
As a result, African election managers have continued to abuse electoral process, declare incumbents winners and thereafter urge everyone else to accept the result because it is too expensive to go for another election on the basis of “a few irregularities”. Kenya’s Supreme Court has called their bluff.
As Gerhard Holzinger, head of Austria’s Constitutional Court, said in 2016: “The decision I am announcing today has no winner and no loser, it has only one aim: To strengthen trust in the rule of law and democracy.”
That is what Kenya Chief Justice David Maraga echoed when he said on Friday: “The greatness of a nation lies in its fidelity to its constitution and the strict adherence to the rule of law and above all the fear of God.”
We hope Africa’s election chiefs and judges pick some lessons from this.