Commentary

Supreme Court set a historic precedent but erred in principle

 

September 1, 2017, will forever be remembered as the day the Supreme Court took it upon itself to set a historic precedent.

In over half a century, no court in Kenya has overturned a presidential election.

The court however erred in principle because there was not enough evidence to overturn the election of Uhuru Kenyatta as President.

Elections are a human endeavour and prone to error.

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The question before the court was whether the electoral process was so egregious that it significantly changed the overall outcome of the election.

The National Super Alliance (NASA) did not provide enough evidence to justify the wholesale nullification of the election.

Indeed, the NASA team made up its evidence as it went along.

The alliance came up with an unidentified “whistle-blower” that to this day has not been revealed to the public and made up hacking claims of the Independent Electoral and Boundaries Commission (IEBC) server on software the IEBC does not use.

NASA appeared disingenuous to most local and international observers in its reaction to their electoral loss.

Most observers said the election was free, fair and credible.

How the Supreme Court missed this, only the four justices who voted “yes” know.

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There are bound to be errors in any election but the errors in the August 8 elections did not meet the threshold to justify wholesale nullification.

The Supreme Court also erred on the question of the election results.

Most of the results were counted by NASA agents who signed off on the forms 34A.

Accept results

NASA instead challenged the mode of transmission of these results.

It is difficult to comprehend how they could accept the results transmitted in their stronghold regions as legitimate but at the same time reject the results from areas where it lost seats.

The court should have challenged NASA’s selective application of the disenfranchisement of the electorate.

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Ironically, the very Supreme Court that NASA castigated as being unfit to render justice in the run up to the election, is the same one the alliance is congratulating for a decision in its favour.

The court failed to see that NASA was not contesting the decision of the electorate at the voting booth, but rather the process.

Ultimately, the will of the people - as encapsulated in the decision of the electorate in the voting booth - is the most important.

The IEBC did its best under tough circumstances to make this happen albeit with a few errors in the process of delivering the results.

Again, whatever errors there were did not meet the threshold to nullify the whole election. The Supreme Court chose to see it otherwise.

Next president

Where does this leave the court? It finds itself appearing to be engaging in the process of selecting the next president of Kenya when the majority of Kenyans already elected him.

It is not seen as a neutral arbiter but an institution that has engaged in political rather than legal prerogatives. Elections can never be won in court, only at the ballot box.

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One important consequence of this decision is that the court has lowered the threshold for annulling presidential elections.

It has opened a Pandora’s box that will be impossible to shut. The unintended consequences of this are still to be played out.

One possible consequence of this decision is the proliferation of frivolous law suits from sore presidential election losers who cannot admit they have been fairly beaten.

In addition to this, the court risks losing credibility if, every election year, it repeats the process of deciding the next president.

Key questions

Key questions to be asked after this Supreme Court decision are whether unelected judges should be involved in presidential election petitions.

Kenyans will be asking for alternatives to the status quo. Some might contend that in the event of a stalemate in an election, the process is better resolved through the Legislature (Parliament) via the people’s representatives.

In other words, it should be a political rather than a legal process.

While I respect the decision of the Supreme Court, I disagree with the outcome.

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The place to decide political questions is in Parliament, not the Supreme Court.

 Mr Monda, Political Science Department, City University of New York

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