Kenyan election nullification

The Kenyan Judiciary made history yesterday when it became the first in Africa to nullify the results of a presidential election.

When history is written, it will reflect that Kenya was a trailblazer in making such a far-reaching legal decision that will have one of the biggest effects on democracy, not just in Africa but even beyond. Other countries have not fared as well.

In December 2010, Cote d’Ivoire found itself with two ‘presidents’ — one declared by the electoral commission and the other by the Constitutional Council.

The scenario was confusing considering that one of them, Mr Alassane Ouattara, had been declared by the electoral agency and recognised by then United Nations secretary-general Ban Ki-moon.

The other, Mr Laurent Gbagbo, had, at the same time, been declared ‘winner’ by the council, giving him some authority to stake a claim to the presidency. The chaos ended up with Mr Gbagbo being dragged to the International Criminal Court.

But it made Cote d’Ivoire the only country in Africa where a candidate’s victory had been ‘overturned’, albeit briefly, through a judicial body.

At least seven African countries have in the past seen presidential petitions being filed but all of them were unsuccessful. In Kenya (2013), Uganda, Sierra Leone, Zimbabwe, Nigeria, Zambia and Ghana, parties have challenged electoral 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 threshold for doing so had not been met.

In 2013, for example, Ghana’s then opposition leader (now President) Nana Akufo-Addo challenged the election of Mr John Mahama, asking for the annulment of results from 11,138 polling stations. He sought to be declared winner instead of Mr Mahama.

The judges ruled in favour of the incumbent. One judge stated that elections can never be won in courts, but at polling stations.

In Uganda last year, former Prime Minister Amama Mbambazi filed a petition at the Supreme Court, citing 28 reasons to annul President Yoweri Museveni’s victory. He argued that voters had been bribed and electoral materials delivered late. He further said there was unequal coverage by the State media, illegal nomination of candidates and no voters’ register. The judges dismissed the petition, citing insufficient evidence.

The same court dismissed previous petitions in 2001 and 2007, when Dr Kizza Besigye challenged President Museveni’s election victories.

In 2013, Kenya’s own Supreme Court also dismissed a petition challenging President Uhuru Kenyatta’s victory, finding “no profound irregularity in the management of the electoral process”.

So why do judges on the continent shy away from annulling presidential results?

Experts think the reasoning of the judges could be political, seeing themselves, for example, as the only arm of government that does not get mandate from the public through elections. Or because they lack independence.

“Petitions in Africa are not likely to succeed because the Executive has excessive powers and resources and can undermine all other institutions and arms of government,” Mr Elkanah Odembo, a retired Kenyan diplomat, told the Saturday Nation.

With Africa’s young democracy, experts think there isn’t a defined separation of powers among the arms of government, making it difficult for judges to rule without considering their job security.

“The Judiciary seems to be subservient to the Executive,” argued Mr Tom Mboya, a political science lecturer at Maseno University.

He said the appointment of judges often takes a political dimension, with interest groups keen to have their people on the Bench. He said this also influences judgments.

The situation does not mean there are no improvements since other petitions filed against regional leaders such as governors have often succeeded across the continent.

“The shift towards real constitutional democracy is taking shape, especially if you look at some of the key decisions made by these courts recently,” said Mr Mboya.

But Prof Macharia Munene, who teaches History at USIU-Africa differs, saying most petitions have failed because of the motives of the petitioners. “If a petition is in bad faith, it is unlikely to succeed because it will be poorly prepared,” he said. “A number of them are based on refusal to accept the facts on the ground.”

Lawyers, though, argue the reasoning could be legal

“The general thinking in jurisprudence is that it is unfair and contrary to the principles regulating adult suffrage that the administrative sins of election officials be visited upon voters, so long as the latter have voted in accordance with the law,” Ghanaian legal academic Mirram Azu argues in a recent article in the African Human Rights Law Journal.

In this case, judges often demand a high bar, which has not been met yet, she argued. But judges also take cue from one another across the continent, making it difficult to break precedents, even if the initial one was erroneous.

The Kenyan judges may have taken this route when they dismissed opposition leader Raila Odinga’s case in 2013, taking a cue from petitions in Nigerian, where judges had dismissed cases, citing lack of high standards of evidence.