The chickens have come home to roost for the IEBC and the Jubilee regime. In a historic landmark opinion, the Supreme Court of Kenya did what no other court has ever done in the history of the republic – it nullified a presidential election. We should let that statement sink in for a moment. Chief Justice David Maraga and three of his colleagues delivered a jurist’s devastating blow to electoral authoritarianism in Kenya. The Maraga Court – as it will now forever be known – did what the Mutunga Court didn’t – allow the evidence to speak for itself. In the stroke of a pen, the Maraga Court has done what’s never been done anywhere in Africa – declare a presidential election victory null and void.
Let’s ponder the meaning – and impact – of the Supreme Court’s ruling. First, the court’s ruling restores a measure of faith in the rule of law in Kenya. It’s a humongous victory for the 2010 Constitution and Kenya’s Judiciary. But it’s an even bigger victory for the Supreme Court which had lost its legitimacy and credibility after upholding the highly disputed 2013 presidential poll. It’s an open secret that the Jubilee regime attempted to pack the Judicial Service Commission in advance of the election. That gambit has backfired spectacularly. The Maraga Court has re-established the supremacy of the Constitution and its own independence from an imperial Executive. As Martin Luther Jr said, the arc of history is long, but it bends towards justice.
Second, the Supreme Court’s ruling solidifies NASA presidential candidate Raila Odinga’s legacy among the greatest democrats in Africa and the world. Raila and his running mate Kalonzo Musyoka have not wavered in their quest for a free and fair poll. But it’s because of Raila perseverance that another milestone has been achieved. Raila’s victory was stolen in 2007. The man who spent a decade in detention for fighting for democracy was again denied victory in 2013. But he didn’t quit, or lose heart. In the face of overwhelming domestic and international pressure, Raila and Kalonzo refused to concede a stolen election. The Maraga Court has vindicated them. It’s not for nothing that they call Raila “Baba.”
Third, the Maraga Court has put to shame – absolute shame – both domestic and international election observers and Western powers. Secretary John Kerry, the former American top diplomat who headed the Carter Center’s election observer mission, must now eat crow. He had berated Raila, Kalonzo and NASA for charging that the election was rigged. American Ambassador to Kenya Robert Godec hasn’t been able to hide his disdain for NASA and his love affair with Jubilee. I believe it was on the strength of Mr Kerry’s erroneous rush to judgement and Ambassador Godec’s cables to Washington that President Donald Trump prematurely congratulated Jubilee’s Uhuru Kenyatta for the stolen victory. Other Western leaders quickly followed suit. Shame on all of them.
The West has always been duplicitous when it comes to democracy in Africa. For long, the West supported murderous dictators in Africa – Zaire’s Mobutu and Egypt’s Mubarak come to mind. Democracy and human rights have never really mattered much to the West in Africa. Western strategic economic, security, and military interests have always trumped human rights in Africa, except for a brief fleeting period after the cold war. Even former US President Barack Obama set aside human rights concerns and the contested 2013 poll and came to Kenya to give Kenyatta’s regime – deeply compromised by the ICC cases – the imprimatur of American legitimacy. Kerry and Amb Godec showed that stability – by stamping Kenyatta’s stolen victory – is more important than democracy.
The West jumped the gun to congratulate Kenyatta even before the Supreme Court had heard the petition – it desperately wanted Kenyatta re-confirmed in power. So much for the mantra of the rule of law by the West. The African Union and Igad observers – clubs of dictators – gave the stolen election a premature bill of health.
The West had invested lots of money in the IEBC and couldn’t admit IEBC was irreparably compromised to conduct a credible election despite overwhelming evidence provided by NASA and civil society’s Kura Yangu Sauti Yangu hosted by the Kenya Human Rights Commission. They turned a blind eye when Jubilee deregistered the KHRC and AfriCOG to stop them from filing a petition against the election.
Finally, and most importantly, the IEBC as constituted has lost all credibility and legitimacy to conduct the re-election ordered by the court. The commissioners and staff of the IEBC clearly committed criminal offences by manipulating the election. The current IEBC should be prosecuted, disbanded, and sent home. The whole election – not just the presidential poll – must be nullified. A fish that’s rotten in the head is wholly rotten.
- Prof Makau Mutua is SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of KHRC. @makaumutua