Amani, brothers, amani

Kenya made African history penultimate Friday when its Supreme Court voided the August 8 presidential election that had returned incumbent President Uhuru Kenyatta as winner and ordered a fresh run within 60 days. That apex court ruled the East African country’s election management body, the Independent Electoral and Boundaries Commission (IEBC), out of order in the manner it conducted the poll, which their Lordships held inconsistent with the dictates of Kenya’s grundnorm law.

The verdict was historic, being the first on this continent of Africa where opposition challenge in court against declared victory of an incumbent contender carried the day. National Super Alliance (NASA) candidate Raila Odinga had red flagged the purported victory of Jubilee Party’s Kenyatta – not on account of suspected violations in the voting procedure or indeed the ballot counting, but for procedural infringements in the results transmission. And he succeeded in swaying the court to his trench.

It was a first because whereas elections have previously been upturned in Africa, none of those was on account of opposition legal challenge. When the military in Algeria scuttled the second round of parliamentary elections in 1991/92, it was because the detested Islamic Salvation Front was strongly on course to win that poll. Our own Gen Ibrahim Babangida in 1993 annulled the June 12 election of Chief Moshood Abiola by diktat because he apparently was haunted by demons of impending civvies outside political power, which he eventually had to confront by hurriedly ‘stepping aside’. And in 2010, the Ivorian Constitutional Council overruled the result of the presidential election won by then opposition leader Alassane Ouattara to indulge the self-perpetuation agenda of Laurent Gbagbo, who presently cools off his heels in the International Criminal Court’s (ICC) can. And talking about lawsuits, Nigerian opposition contenders routinely challenge declared victories of incumbent candidates or candidates of ruling parties in court, but those calls hardly ever holds up in judicial adjudication.

The Kenyan verdict set some other precedents that are likely to reconfigure the practice standards for election-related activities in African democracies and perhaps beyond.

For instance, the country’s Supreme Court shook off the never once acknowledged but insidiously inhering code of practice – namely expedience – which apparently leashes the judiciaries of many countries from delivering radically upsetting verdicts. Take the issue of election financials: in cost terms, Kenya’s August 8 elections were reputed to be Africa’s most expensive on cost-per-voter basis, having gulped 49.9billion Kenyan shillings (KSh) – that is, some $480million – in public spending; and that is not counting private spending by political actors, which saw the cumulative expenditure topping $1billion. The apex court didn’t consider the cost factor sufficiently consequential to obstruct justice in its order for fresh poll.

Also, Kenyan politics notoriously runs on ethnic rivalry and is easily prone to primal violence. That was what fuelled the global apprehension that heralded the August election, coupled with considerable slowdown in the country’s economy as investors pulled back in wary anticipation. Besides, Chief Justice David Maraga came to that office certainly by merit, but also with anointment by incumbent President Kenyatta. The Supreme Court was, however, not hamstrung by those considerations in throwing Kenyatta’s purported victory in the bin.

Following the verdict, Kenyan stocks that had rebounded in valued after IEBC declared Kenyatta the winner returned to the downhill path. The Kenyan shilling as well lost its newly gained muscle against the U.S. dollar, while Kenya’s dollar-denominated bonds cascaded in value. But the apparent lesson from the apex court is that the imperative of delivering justice to a party truly aggrieved outweighs potentially adverse side effects; and I think it is a lesson that needs to be imbibed by judiciaries in other countries, especially in Africa.

Then, you could bet that the procedures for observation missions and foreign commentaries on African elections will from now on be radically reformulated. The August 8 Kenyan poll had the full complement of eminent foreign observers from the United States, the Commonwealth, the European Union and African Union, among others. We perhaps need not mention reputed domestic groups who stomped the polling precincts also on observation mission. The foreign missions in particular were led by distinguished persons like former U.S. Secretary of State John Kerry, who steered the respected American non-governmental organisation, The Carter Center, as well as former South African President Thabo Mbeki who anchored the AU mission. All the observer missions, almost without exception, submitted that the August Kenyan poll was free, fair and credible. Actually, Kerry’s report for The Carter Center was pleaded in court by the Kenyatta camp in its defence against Odinga’s petition. And it was apparently on the strength of the observer mission reports that The New York Times, on the heels of the elections, branded Odinga a bad loser and thumbed its nose at his claim of poll irregularity.

The Kenyan verdict set precedents that are likely to reconfigure the practice standards for election-related activities in African democracies and perhaps beyond

Now the Kenyan Supreme Court verdict has splashed eggs on the faces of the observer commentariat, leaving them grappling with convincing explanations of their positive verdicts. The common line of defense was that they had commented on what they saw of the voting and ballot counting procedures, and not about results transmission before a winner was declared. I happened to have had some experience of how election observation works, and do believe they are likely right. But the Supreme Court verdict nonetheless knocked out the bottom from their credibility.

Odinga, not unexpectedly, seized the verdict as a lightning rod to accuse the observers of having “moved so fast to sanitise fraud,” adding: “Their role must be re-examined as it is highly politicised.” The New York Times, in an editorial last week, ate the humble pie and retracted its criticism of Odinga. And the Financial Times, in an article, lit into the international observers “whose formulaic rubber stamping of results,” it said, “has become increasingly insidious – notably in undermining their own credibility, but also in spreading cynicism among the electorate.”

With their sour experience regarding the Kenyan poll, you can wager that international observers, and perhaps local ones, will henceforth hold back on issuing reports on their mission until judicial processes run their full course in the courts. But that, in my reckoning, also has many downsides for the primary objective of putting African democracies under observation spotlight to ensure probity in their conduct of elections.

Meanwhile the chief gladiators in the Kenyan poll have bunkered up once again in their trenches, digging deep into their mutually adversarial positions. The electoral commission scheduled a rerun between Kenyatta and Odinga for October 17, dropping six other candidates that had featured on the ballot for the voided August 8 poll. But Odinga early last week threatened to boycott that rerun unless the election management team was recomposed, and the date changed to October 24. IEBC chairperson, Wafula Chebukati, appeared to partly oblige his demand by naming a six-member squad to oversee the scheduled rerun. But while that move perhaps appeased the opposition alliance, Kenyatta’s ruling party raised the red flag later last week, rejecting the new nominees. As at the weekend, the team composition that would be acceptable to both sides was up in the air.

But with the extremely brittle nature of armistice in Kenyan politics, the gladiators need large hearts for accommodation to forestall a return to the 2007-2008 Golgotha of wildcat violence. The Swahili word for peace is ‘amani,’ hence my plea to all Kenyans: amani, brothers, amani.