Kenya: A Case of Constitutional Democracy

The Crisis in Zimbabwe Coalition joins Kenya in celebrating the outcome of the Supreme Court ruling on the August 2017 Kenyan Presidential Elections. Kenya’s Supreme Court has nullified President Uhuru Kenyatta’s election win last month and called for new elections within 60 days. The six-judge bench ruled 4-2 in favor of the petition filed by opposition candidate Raila Odinga.

Mr Odinga claimed that the electronic voting results were hacked into and manipulated in favor of Kenyatta. President Uhuru Kenyatta had won a second term with 54 percent of the vote. Raila Odinga’s lawyers had asked the court to invalidate Kenyatta’s win, saying a scrutiny of the 34A forms used to tally the votes had anomalies that affected nearly 5 million votes. In the submissions to court, opposition candidate Raila Odinga claimed that the electronic voting results were hacked into and manipulated in favor of Kenyatta, who won a second term with 54 percent of the vote. Mr Odinga successfully proved that the Kenyan elections were marred by forgery, alteration of documents, trickery and deception.

It is our belief, as CiZC, that Kenya’s Supreme Court decision to overturn the re-election of President Uhuru Kenyatta, citing irregularities in last month’s election is noble and we wish Kenya a peaceful election within 60 days as required by the constitution. It is commendable that the Kenyan Supreme Court has successfully defended the constitution by noting that the elections were not held in line with the provisions of the constitution.

Based on the outcome of the court, we wish to congratulate Kenya for:

  1. Upholding the supremacy of the constitution with regards to the conduct of credible, free and fair elections. This points to a thriving constitutional democracy and constitutionalism.
  2. An impartial judiciary that is separated from the influence and exercise of power by the Executive as mirrored by the principle of separation of power enshrined in the Kenyan constitution.
  3. A vigilant opposition, National Super Alliance (NASA), for collecting solid and credible evidence against the Independent Electoral and Boundaries Commission which evidence has been used to defend the vote
  4. Upholding the rule of law and demonstrating that all are equal before the law regardless of social standing and privilege.
  5. Overcoming undue influence, that despite approvals of the August elections by international observes and the international community, the court was not blurred in its ruling

Africa and the Scourge of Election Rigging

Our experiences with elections in sub-Saharan Africa show numerous electoral disputes most of which have not been resolved by courts especially where an incumbent is accused of manipulating the electoral process. For instance, in Zimbabwe, the courts have not finalized electoral disputes dating back to year 2000. It is for this reason that CiZC is opposed to Constitution Amendment Bill No.1 which gives the president the sole discretion and power to select and appoint the Chief Justice, which arrangement compromises the independence of the judiciary. Apart from the failure to uphold constitutions, it has become a common scene that elections are administered and managed by compromised Election Management Bodies (EMBs) subservient to incumbents. Other challenges include militarization of elections, electoral violence and intimidation, conflation of the state and ruling party, vote buying and polarized media.

As we reflect on the outcome of the Kenyan Supreme Court ruling and as Zimbabwe prepares for the 2018 elections, we call for:

  1. The scrapping of plans and moves to amend the constitution through Constitution Amendment Bill No.1 and ensure that courts and the judiciary are empowered to objectively handle and solve electoral disputes.
  2. Comprehensive reforms to the Electoral Act that will ensure the impartiality of the Zimbabwe Electoral Commission
  3. Demilitarization of elections and ensure that servicemen and civil servants upon their duties inline with the constitution
  4. A review of the national framework for foreign observers to ensure that they have access to adequate information and engagement (emphasis on process issues) with all election stakeholders.

We once again congratulate Kenya on this historic achievement, which will certainly have an impact in shaping the form and substance of electoral politics not only in Kenya but Africa as a whole.

Source: Crisis in Zimbabwe Coalition