Why Supreme Court’s decision is a win for Kenya’s democracy

The decision of the Supreme Court of Kenya’s on that country’s’ presidential election shows how water tight democratic norms can save even a country that is on the brink.

Kenya’s neighbours, Tanzania included, should take note. Kenya’s 2022 election cycle shows democracy at work not from a shiny, hypothetical framework but from its very practical perspective.

The Court’s unanimous ruling issued on September 5, 2022 reaffirmed the Independent Electoral and Boundaries Commission (IEBC)’s declaration that William Ruto had won fairly and squarely the presidential poll. In the election, conducted on August 9, 2022, Mr Ruto garnered 7,176,141 million votes (50.49 per cent) against his main opponent Raila Odinga’s 6,942,930 million votes (48.85 percent). Other presidential candidates; Prof George Wajackoyah of Roots Party and David Mwaure Waihiga of Agano party managed to get 61,969 votes (0.44 per cent) and 31,987 votes (0.23 per cent) respectively.

It is a fact that the Court ruling, which is a legally-binding opinion, and which was made unanimously by all the seven Kenya’s Supreme Court Judges, will be scrutinized for years to come by legal scholars to point out its weaknesses and strengths.

Mr Odinga’s camp, for instance, quickly issued a statement disagreeing with the Supreme Court’s ruling but respecting its verdict. “We have always stood for the rule of law and the constitution. In this regard, we respect the opinion of the court although we vehemently disagree with their decision today [September 5, 2022],” reads part of the statement.

Democratic activists might also, with good intentions and backed by data and evidence, release audits that show how the Kenyan electoral process had glaring shortcomings that are enough to nullify the elections.

In fact, soon after presidential results were announced media reports indicated inconsistencies in polling data that resulted from substantial numerical errors in actual votes among candidates in several polling stations in the country.

The Nation newspaper, for example, sampled Forms 34A (these forms capture presidential elections at the polling stations) from 233 centres, which showed that presidential candidates may have benefited from inflation of votes, either through overstated registered voters and overstated valid votes cast.

The catch was that the numerical errors did not favour a particular candidate as they ‘benefited’ all candidates, according to the Nation analysis. And because no petitioner submitted these errors to the Supreme Court as part of evidence to have the election results nullified, the Court, whose duty was not to audit the entire election but to make a ruling based on the evidence presented, did not touch on the issue. Democracy is an ideal; it’s not a perfect process. Despite whatever shortcomings that might have occurred in the course of the electoral process, however, the matter of Kenya’s presidential election is settled by the Supreme Court’s announcement, and Mr Ruto is the fifth President of Kenya.

Obviously the cheering on the Court’s decision took place mostly in the streets in towns and villages where Mr Ruto’s has strong support. And about half of the voters (49 per cent) who did not cast their ballots in favour of Mr Ruto will have to live under the leadership of the person they did not vote for.

Some people might try to paint this half of Kenyans, including Mr Odinga himself, as losers. This would be missing the whole point of democracy. Democracy is not a zero-sum game but a civic process by civilized people to mount a transparent process to elect its leaders and abide by the logical finality of the process.

And Kenya met that criterion. That is why it is Kenya’s democracy that has won. Now Kenya’s society - polarized along ethnic lines - is highly volatile. A small mistake in the process can unleash violence. The fact that the country stood still the day the presidential results were declared by IEBC on August 15 and on the day the Supreme Court announced its verdict on September 5 is a witness to this fact. But at the end people, even those who lost had a sigh of relief in the understanding that it ended peacefully.

The Supreme Court decision also vindicated IEBC’s claims of being capable of overseeing credible, tamper-proof elections, after learning from the mistakes of 2017 when the court nullified the presidential elections and called for reruns.

Some analysts have argued that the first-past-the-post electoral democracy is not suitable for a polarized society like Kenya where the support for major presidential candidates is almost equally divided as it was the case in the just concluded polls. These analysts continue to say that Mr Ruto, having received just over 50 per cent of the votes, has a herculean task uniting the country. They propose power-sharing like it was done in the same country following the 2007/08 poll violence. Evidently this is up to Kenyans themselves to determine. But at least in Kenya the essential characteristics of democracy are vivid and can be transparently cross-checked to the extent that it is humanly possible.

Lessons for the region

There is an adage that goes; “Intelligent people learn from their own mistakes; the wise learn from the mistakes of others.”

Also Read:  ‘Time Tanzania borrowed a leaf from Kenya’s elections’

For countries in the region who still figure out how to conduct elections in a manner that would leave their societies intact, they can easily draw lessons from their next door neighbour.

It is true that most countries in the region are not like Kenya. They have their own particular societal problems.

None of these countries, with few exceptions, have experienced such tension and eruption of violence during election times like Kenya, despite the fact that their electoral democratic norms are questionable, with electoral bodies that are only independent in name.

The fact that the electoral tension in these countries doesn’t simmer out in the open is mostly due to the heavy-handedness of the security forces and the authoritarian nature of the regimes running the countries.

This is not sustainable and unless something is done to make the democratic process watertight like Kenya’s a day will come when the tension might erupt.

It is heartening that in Tanzania, President Samia Suluhu Hassan, who doubles as chairperson of the ruling party, CCM, has seen the need for reforms on the electoral process as she articulately pointed it out in her July 1, 2022 published essay marking 30 years of multi-party democracy in Tanzania.

CCM’s National Executive Committee (NEC) has also publicly expressed the commitment of the party to continuing with the constitutional making process after six years of claiming that it was not the party’s priority.

This readiness to overhaul Tanzania democracy is encouraging. It shows CCM understands that the status quo in which the political playing field is tilted in favour of the ruling party is not workable in the long run. Whether it will translate into actual results remains to be seen. But it is the hope of stakeholders and political activists that the 2022 Kenyan electoral experience will serve as an impetus.