Their lordships’ burden

Zambia’s President Edgar Lungu gave voice to a new elephant in the room concerning African electoral democracy, namely the judiciary’s role in facilitating or wonking the culture yet toddling on the continent. Lungu called out the recent precedent of loose-swinging judicial activism by justices in Kenya, with the raucous aftereffects, and admonished his country’s wigs against going that route out of sheer imitation.

Speaking penultimate week at an event in Solwezi, northwest Zambia, the president impliedly conceded the separation of power principle; but he also counseled his country’s judiciary against adventure. “My message is: just do your work, interpret the law without fear or favour and look at the best interest of this country. Don’t become a copycat and think you are a hero if you plunge this country into chaos,” he said, adding: “I am not intimidating the judiciary. I am just warning you (judges) because I have information that some of you want to be adventurous. Your adventure should not plunge us into chaos, please. People are saying Zambian courts should emulate Kenyan courts... (they) should be brave and make decisions that are in the interest of the people. But look at what is happening in Kenya now…”

Lungu was talking about a challenge by opponents to his eligibility for another term in Zambian elections due in 2021. He took office in January 2015 following the death of President Michael Sata, and stood for the 2016 poll in which he emerged tops amid fierce contestation by the opposition. The country’s constitution prescribes a five-year presidential tenure renewable once, and opponents argue that the 2016 mandate was his second and in effect final term, whereas supporters insist it was his first since he merely completed the deceased president’s tenure. “Whether I am eligible to stand or not in 2021 should not be dependent on the case in Kenya,” the Zambian leader said.

His referencing of Kenya hinted at a buzz among Africa’s power centres – executive lynchpins and possibly judiciaries’ as well – about tap-on effects that the East African precedent portend for the entire continent. Kenyan supreme court in a historic verdict on September 1^st voided the country’s presidential election of August 8^th, by which the electoral commission had returned incumbent President Uhuru Kenyatta as re-elected purportedly with 54 percent of the votes cast over challenger Raila Odinga’s 44 percent. Although domestic and international observers were unanimous that the poll was credible, the supreme court held that the electoral body “failed, neglected, or refused to conduct the presidential election in a manner consistent with the dictates of the (Kenyan) constitution” and ordered fresh vote within 60 days.

That verdict was Africa’s first of such against a sitting incumbent, and it showed the Kenyan judiciary asserting fierce independence and a courage that defied moderation by non-juridical considerations.

Ignore now the self-interest motivation for Lungu’s counsel to the Zambian judiciary, his dread of tap-on effects of the Kenyan verdict seems already playing out. Only last Monday, the supreme court of Liberia staunched the country’s presidential run-off scheduled for the next day and ordered the electoral commission to go dirt digging in allegations of “fraud and irregularities” stacked against the original poll by a candidate who isn’t even factored into the run-off.

Ex-football international George Weah had topped the 10^th October presidential election with 38.4 percent of ballots cast, Vice-President Joseph Boakai ran up with 28.8 percent, while Charles Brumskine of Liberty Party placed a distant third with 9.6 percent votes. A run-off was warranted because no candidate polled more than 50 percent of the votes as required by Liberian law for a straight win, and it was to be a square-up between Weah and Boakai. But Brumskine piled petitions against the October poll, on account of which the supreme court ordered last week that the run-off be shelved until the electoral commission probes the charges. The catch is, the tenure of outgoing President Ellen Johnson-Sirleaf expires shortly and Article 50 of Liberia’s 1986 Constitution stipulates that a successor be installed “at noon on the third working Monday in January of the year immediately following the elections.” With the open-ended pendency now imposed on the run-off, and the likelihood of ensuing litigation whenever it eventually holds, the application of that constitutional clause seems up in the air.

'With unbridled desperation of political gladiators, their lordships may need to define the boundary between a tendency to exploit judicial processes for anarchic ends and seeking justice for genuine grievances'

Kenya had glowed with judicial preeminence on the heels of the supreme court verdict in September. But take a look at that country now, as Lungu – even if for a spurious motive – indicated. You could well say the East African country has morphed from a powerhouse to paradise lost, and it’s no thanks to the zero sum mentality that typifies Africa’s power elite. Following the September verdict, Kenyatta and Odinga dug their heels into odd trenches that sent their country on degenerative tailspin. But Odinga, at whose instance the August poll was voided, easily takes the prize for nihilism. He pressed for open-ended delay of a rematch slated for October 26^th until the electoral commission met opposition shopping list for self-overhaul, while Kenyatta insisted that the vote should go ahead. And when the opposition challenger could not have it his way, he called a boycott of the fresh vote, which resulted in a paltry 38 percentage voter turnout in contrast to the uniquely high 79 percent turnout recorded for the August poll. He has since said the opposition camp was transforming into a resistance movement – with all implications of that move for polity stability.     

Meanwhile, the supreme court that had invalidated the earlier poll seemed too exhausted now to rein in the tense escalation of partisan bile. A bid by opposition agents to throw judicial spanners in the scheduled rematch fell through when the apex court, on the eve of polling day, declined to hear a petition to postpone the vote because only two justices showed up – three short of five justices required to form a quorum of the seven-member court. And as Chief Justice David Maraga announced the apex court’s inability to hear that petition, you could guess he and his colleagues must be ruminating the value their earlier verdict added to building Kenyan electoral democracy.

With unbridled desperation of political gladiators in most African countries, Nigeria inclusive, for the power pie, their lordships may need to define the boundary between a tendency to exploit judicial processes for anarchic ends and seeking justice for genuine grievances.