Why Kenyans Must Keep Their Feet Firmly On The Ground

Kenyans are given to bouts of euphoria. Once ranked as the most optimistic people in the world, it is a society almost congenitally programmed to look on the bright side of life and to seek out silver linings on even the darkest of clouds. It is famously the land of “Hakuna Matata”, which for anyone who’s watched Disney’s The Lion King can recite, is “a problem-free philosophy”.

Our irrational exuberance is once again bubbling up to surface in the wake of the Supreme Court verdict that annulled President Uhuru Kenyatta’s barely three-week old re-election. In a sense, it is understandable. It has been a tense time, filled with trepidation, after yet another rapturous voting day, invested with all the hope for better days the country could muster. This is despite the knowledge that although the country has held regular elections throughout its 50 years of independence, they have never resulted in truly meaningful, lasting change.

Even the 2002 election – perhaps the most ecstatic of them all, given it was bringing the curtain down on the 24-year despotic and kleptocratic reign of Daniel arap Moi – only inaugurated Mwai Kibaki’s turn to eat. Pretty soon, the Kenyans who had been going around effecting citizen arrests on corrupt cops in the belief all had changed, were treated to a rude shock when reports of grand corruption at the highest level began to surface with increasing regularity. So much so, that the President’s own anti-graft czar had to flee the country. Corrupt ministers are "eating like gluttons" and "vomiting on the shoes" of donors, declared the British High Commissioner, Edward Clay.

Anyway, back to the Supreme Court ruling. Similarly to the 2002 poll, the election that the court has just voided was manifestly full of irregularities. However, 15 years ago it did not much matter. The vote against Moi’s handpicked successor – ironically the current incumbent – was so overwhelming that the regime had little choice other than to concede. In any case, electoral reform at the time had mainly consisted of a “gentleman’s agreement” that allowed the opposition to nominate some of the members of the electoral commission.

The integrity of the process today matters much more than it did a decade and a half ago. Elections are much more closely fought and the electoral infrastructure is much more elaborate. Methods for stealing them have also become more intricate and difficult to detect.

After a dispute over the 2007 presidential election led to violence that killed over 1300 people and displaced hundreds of thousands more, a commission led by South African judge Johann Kriegler proposed a raft of reforms to the electoral system, including the electronic transmission of results from polling stations.

Five years later, despite a new constitution, few of those reforms had actually been implemented. During the election, a hastily and dubiously procured system for biometrically identifying voters and electronically transmitting results failed (or was made to fail) across the country. Further, there were allegations that the election had been hacked. If that sounds familiar, it’s because pretty much the same thing happened this year.

However, by the time Kenyans went to the polls nearly a month ago, laws governing the electoral process had been passed and largely clarified by the courts. On voting day, the biometric systems seemed to have worked but not the electronic transmission. As counting proceeded, figures started scrolling across our TV screens courtesy of the Independent Electoral and Boundaries Commission (IEBC) headquarters. Figures seemed to show a constant and consistent lead by President Kenyatta over his closest rival, Raila Odinga. 

The figures, which the IEBC would disown as mere "statistics" when their validity was questioned, were the first sign that something had gone seriously wrong. Thereafter, despite the verdicts of international observers, led by former US Secretary of State, John Kerry, when the IEBC could not produce the scanned forms on which the results were based, it became clear that the election was far from credible.

The appeal to the Supreme Court in 2013 had been dismissed in its entirety, with the court establishing an impossibly high standard of proof which seemed to ensure a presidential election would never be reversed. Four of the six judges who issued the widely-rubbished, unanimous judgment, are still on the court. Perhaps this is why the opposition initially said that although it wasn't accepting the results, it would not be taking its case to the court. Following a change of heart, they did file a petition, which to everyone's surprise, was upheld.

The annulment is a very big deal and definitely worth celebrating. Along with overturning an injustice and reinforcing Kenya’s democratic credentials, by cementing the Supreme Court’s credibility, it has made future 2008-type post-presidential-poll violence much less likely. For once, Kenya the state has stood up for Kenyans, and that is huge. But we should be careful not to get carried away.

First, there were problems with the court declaration itself. One of the allegations that had been put forward by the petitioners was that the incumbent had abused his office by using public resources and officials to campaign. The judges seemed to gloss over this when they found no evidence of wrongdoing despite glaring proof.

Further, the pronouncements of Kenya’s accession to the league of mature democracies were not only premature when the now disgraced Chair of the IEBC made them as he declared Kenyatta the president-elect; they are premature today. The judgement is a giant leap forward but one decision does not a democracy make. It just creates possibilities for a better, more accountable electoral system. However, Kenyans have a tendency to want to persist in these giddy moments of possibility rather than to do the hard work of translating them into reality.  Sadly, as we have seen with the 2003 election of Kibaki, can, if not seized, also inaugurate a much less desirable state of affairs.

  

Of immediate concern is the potential for a backlash from an Executive stung by what it considers to be a judicial uprising. "If you rattle a snake, you must be prepared to be bitten by it," the late authoritarian Cabinet Minister, John Michuki, warned us, after the government raided the country’s second-largest media group in 2006. Kenyans cannot afford to be complacent. President Kenyatta has just been rattled and he is threatening to bite. Already, he has taken to calling the Supreme Court judges "wakora" or bandits and his lawyer has described the ruling as a judicial coup. "[Chief Justice David] Maraga and his thugs have decided to cancel the election. Now I am no longer the president-elect. I am the serving president... Maraga should know that he is now dealing with the serving president," he reportedly threatened on Friday. “We have a problem with our judiciary but regardless we respect [their decision]. But we shall revisit,” he declared ominously a day later.

Whether it’s Kenyatta or Odinga who gets elected in two-months’ time, the independent judiciary will probably itself be the target of an Executive branch used to getting its way. However, with his Jubilee party in control of both houses of Parliament, Kenyatta will pose a particularly grave threat. History has taught us that great gains can be quickly reversed. Kenya still has a long way to go before it can get rid of its entrenched culture of impunity and become a society that truly caters for the needs of all its people, not the desires of a few at the very top.

Finally, another election has to be held within two months. Kenya is only the third country in the world, after the Ukraine and Austria, to have the courts annul a presidential election. In the other two repeat elections, the incumbent won. Now, that itself is not a problem. The Supreme Court has rightly said, who wins matters less than how that win is secured. There is little time to make significant changes to the electoral infrastructure which means there are few guarantees that the same illegalities and irregularities that led to the annulment won't crop up again. Ensuring that Kenya does not end up where it started will require vigilance from all players, including any egg-faced internationals returning to observe and report on the election. The media should set up independent tallying centres and be prepared to call the election, rather than simply regurgitate the numbers and "statistics" coming from the IEBC.

Kenya is not out of the woods yet. The passions and terror that have been on display over the last few months have not gone away. They continue to simmer away just below the surface. While the Supreme Court has reduced the risk of a violent explosion, it has not completely eliminated it. That can only be accomplished through honestly addressing the the problems of our past and finishing the task of implementing the constitution. 

The judgement shows what that constitution makes possible but it would be grossly unfair to heap the burden of actuating it on the shoulders of seven judges. Kenyans must demand that the other independent state agencies, from the National Police Service to the Office of the Director of Public Prosecutions, start to behave and conduct themselves in the manner envisaged by the constitution, not as lackeys of the Executive. Kenyans must realize that the people are the ultimate custodians of the supreme law and even as they celebrate, they should be rolling up their sleeves.

Why Kenyan Supreme Court Judges Should Avoid Sausages

“Laws are like sausages, it is better not to see them being made” is a quip regularly and mistakenly attributed to Otto von Bismarck, the famous Prussian statesman and architect of German unification. However, the Iron Chancellor, who died in 1898, was not associated with the quote until the 1930s. In fact it was the American lawyer-poet, John Godfrey Saxe, otherwise famous for publicizing the ancient Indian parable about Blind Men of Hindustan and The Elephant, who more inelegantly said: "Laws, like sausages, cease to inspire respect in proportion as we know how they are made."

As I write this, oral judgements have been completed at the Supreme Court hearing of Raila Odinga and Kalonzo Musyoka’s petition against the re-election of President Uhuru Kenyatta. It has been 4 days of riveting presentation, argument and often, comedy, as one side prosecuted its case and the other tried to rubbish it. The main bone of contention appears to be about means and ends: whether the way the election was carried out matters or we should only concern ourselves with whether the results declared matched how the electors had voted.

In a sense, it could be said that President Kenyatta and the Independent Electoral and Boundaries Commission (IEBC) appear to prefer the Bismarckian formulation that it is better to focus on the final product and not peer too closely at the inner workings of the electoral system. After all, they argue, the whole point of an election is to express the sovereign will of the voters. So, a simple check of the forms prepared at the polling stations (where all the voting and counting happened) should suffice.

The petitioners on the other hand, are more in line with Saxe. They say that the more we actually learn about how the election was run, the less reason we will have to respect the result. They point out numerous irregularities and outright illegalities in the conduct of the poll which they hold undermine any confidence, not only in the veracity of the announced result, but also in the authenticity of whatever documents the IEBC might produce to support it.

I have been somewhat mystified by the way in which these arguments were framed. Throughout, voters have been portrayed as passive actors upon whom elections are visited. The lawyers in the room, including the Attorney-General, behaved very like the blind men of Hindustan trying to define the elephant that is the people’s sovereignty. There seemed little recognition that sovereignty does not start and end with the casting of ballots and determining of who becomes President. Citizens do not become sovereign when they transmogrify into voters. They are always sovereign in a democracy.

Further, as I have written before, voting in an election is not – as one of the lawyers unfortunately declared – the foundation of democracy. How much ordinary citizens can contribute to everyday political decision-making and their ability to hold public officials to account are the true measures of democracy. Thus, if elections are about the sovereignty of the voter, as another averred, then constitutions are about the citizen. And the entire corpus of law, the foundation of which should be the constitution and citizen participation in governance, is an exercise in sovereignty.

Protecting the expression of sovereignty therefore entails more than singularly ensuring the correct result was announced. It also means ensuring that the process prescribed by the law was adhered to. It is not a choice between respecting one or the other.

Now, after dominating TV screens for nearly a week, the process of adjudicating the petition moves into the shadows as the judges retire to consider their verdict. Four years ago, after a similar week of TV drama, they reappeared with a sausage of a judgement, with only a short summary of the decisions delivered in open court but eventually revealed to consist of a messy and unhealthy cocktail of poorly-reasoned arguments.

It is proper that the judges should concern themselves with burdens and standards of proof and with the attendant requirements of who should prove what to which degree of satisfaction. In exercising its delegated sovereignty, the court is subject to the constraints of evidence. What is true and what can be proven not necessarily being the same thing, courts only concern themselves with the latter.

The upshot of this is that the court cannot tell us whether the election was stolen, just whether Raila and Kalonzo can prove it. That means, regardless of what the courts rule, it will still be up to each citizen to decide for himself or herself whether they believe the election was credible and whether the IEBC and other arms of government have properly carried out the mandates given to them.

Still, this does not mean the Supreme Court’s judgement is irrelevant or unimportant. It will decide the legal validity, if not exactly the legitimacy, of the poll and the government it births. It is hoped that the judges will each prepare individual judgements, clearly detailing the reasons for the conclusions they have come to and that each will get to read his or her judgement in open court. The truth is, elections and court judgments should be nothing like sausages. The more one knows how they were made, the more they should command respect and be savored.