Asserting the supremacy of the Kenyan Constitution

Published 7th September 2017

Mandated to “assert the supremacy of the Constitution and the sovereignty of the people of Kenya” the Kenyan Supreme Court did just that last week when they stunned the world with a ruling that has positively resonated throughout the African continent. Kenya’s highest court ruled that the 2017 Presidential election results were null and void on the basis that the election was not held in accordance with the Constitution and applicable laws. This judgement displays the power of judicial independence and champions the rule of law, but it also casts aspersions on the role played by international election observers who had generally declared the election to be free and fair.

Fearing a repeat of the 2007/2008 post election violence, the 2017 election had Kenyans on the edge of their seats. Though there were reported incidents of violence, allegedly at the hands of security officers, it paled in comparison to the loss of 1200 lives during the 2007/2008 post election violence. What did feature prominently in this election were the irregularities and claims that the ruling party had compromised the credibility of the elections. What has clearly emerged is that the Independent Electoral and Boundaries Commission (IEBC) failed to follow election rules and regulations as well as the Constitution, thus compromising the outcome.

Incumbent Uhuru Kenyatta and rival Raila Odinga have gone head to head in the polls in the past and Odinga has always come up short. According to the poll results Uhuru Kenyatta won the election having secured 54 % of the vote. Odinga approached the Court and four of the six sitting judges nullified the results and called for fresh elections to be held within 60 days. Two of the six judges dissented, and a seventh judge fell ill on the last day of the hearing.

The Kenyan Supreme Court has ruled without fear or favour and entrenched constitutional law simultaneously protecting democracy. Whilst Kenyatta accepted the ruling he regretted, that “6 people have decided that they will go against the will of the people.” Despite his quibble, this ruling reflects the importance of a clear separation of powers and reminds us all that independent and credible courts are a vital part of any democratic nation.

Whilst the Kenyan Supreme Court is fulfilling its mandate in an impartial and credible manner, the same cannot be said about the international election observers. To be fair, the work done by an election observer mission is no mean feat. It is a costly affair requiring detailed planning, a decent sized workforce and generous funding. However, not all of these vital elements come together.

The European Union Election Observer Mission deployed roughly 130 observers and the African Union Election Observer Mission (AUEOM) had a delegation of 90 short-term observers and 14 long-term observers. Some would argue these figures are too low for effective election monitoring.

The Carter Centre Observation Mission included roughly 100 observers. On the day of the election they observed the process in 424 polling stations in 185 constituencies across 39 Kenyan counties. They also observed the vote tallying process in 36 constituency tally centers. There are 290 constituencies in Kenya.

The number of people deployed and funding constraints faced by election observation missions must be considered, as should the sometimes limited access they are granted by host nations. However, in this particular case- the factors they choose to focus on also require scrutiny. Many observers placed great emphasis on the fact that the process was predominantly peaceful-a valid and important point -but in some cases this seems to have resulted in an expeditious and perhaps premature conclusion that the process was also fair.

John Mahama, former Ghanaian President, led the Commonwealth Observer Mission and indicated “Our overall conclusion is that the opening, voting, closing and counting process at the polling stations on 8 August 2017 were credible, transparent and inclusive.”

The AUEOM, led by former President Thabo Mbeki, whilst reserving the right to make further comments stated “we can say that the processes we were able to observe, up to and including the counting of the votes at the polling stations and their transmission to the IEBC, met the standards set by Kenya and the AU for the conduct of democratic elections.” Though the detailed judgement is yet to be released, the ruling from the judges paints a different picture.

The election observers have a chance to get it right as elections have been set for 17 October 2017. The situation remains complicated as there are doubts about the constitution and the credibility of the IEBC, and questions about whether there is sufficient time to organise an entire re-election. All of this compounded with fears as to whether the process will be peaceful, transparent and fair, be that as it may, the show must go on.

**This article appeared in the Star Newspaper on 7 September 2017

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