The Kenyan supreme court decision may polarize the population

05.09.17

AiIeen Kimutai, Nairobi
The Supreme Court in Nairobi on September 1, 2017 The Supreme Court in Nairobi on September 1, 2017 ©SIMON MAINA / AFP
It has been hailed as a benchmark the Kenyan Supreme Court ruling that nullified the August 8 presidential election results while ordering for a re-run within 60 days.

The August 11 election declaration gave  the incumbent Uhuru Kenyatta 54.27 per cent of the votes against the 44.74 per cent for his rival Raila Odinga of the opposition National Super Alliance (NASA). However NASA disputed the results, alleging "hacking"  of the electoral board database and  massive rigging in favour of the ruling Jubilee party.

In the landmark ruling, four Supreme Court judges accepted that  the  Kenyan Independent Electoral Boundaries Commission (IEBC) had "failed, neglected or refused to conduct the elections in a manner and the dictates of the Constitution."

Reaction to the ruling has been split across the political divide, but constitutional lawyers have warned that the radical decision may polarize the Kenyan population, which has been sharply split along tribal lines.

Nairobi lawyer Christopher Kibe Mungai says the IEBC must be held accountable for the prolonged electoral transition, which is likely to put more pressure on the fledgling economy of the east African nation.

"When the innocent people of Kenya are ordered to repeat an exercise they had conducted superbly, I cannot help feeling that the Kenyan voters are being punished for no sins and the court majority has given them a raw deal," said Kibe.

Betrayal of the Kenyan people

"In my view the will of the people had been expressed on the ballot box, and if the IEBC could not convey the same, it is spectacular betrayal of the Kenyan people".

Fellow lawyers Donald Kipkorir and Danstan Omari say the ruling was a clear test of the Kenyan constitution enacted in 2010 and common law dictated by the court judges which prevailed in the election petition.

"What was in court was a contest  between the Kenyan constitution and the common law interpretation and the way of deciding cases,"  Omari said in a television interview, adding: "Kenyans should look at their constitution. In Article 256, the constitution itself says matters should be interpreted in a manner that develops the law. The common law doctrine was interpreted in manner that maintains the status quo. That's Jubilee was telling NASA go to court and not go to the streets because the common law holds that they would win."

"Jubilee never responded to the petition as presented and that's why they lost the petition.

"In 2013 Raila Odinga lost the petition against Kenyatta because  he could prove he had the numbers to warrant his case petition, but in 2017, it is about purely about the provisions."

Kipkorir, who broke ranks with Jubilee to back Nasa before the elections said Jubilee lost the petition because they relied on the support of the reports of  the foreign observer teams to back their case.

"The electoral process was flawed right from the start----from the ballot papers used, the filling of forms 34A and 34B to the actual transmission and announcement of the results by the IEBC chairman Wafula Chebukati. "The lawyers of Jubilee and the IEBC completely misunderstood, misinterpreted and mismanaged the Nasa petition."

The IEBC  rerun will be on October 17  and the long wait is bound to cause anxiety among the weary Kenyan electorate.  The two protagonists Kenyatta and Odinga have swung back on the campaign trail hoping to woo the voters to support  their election bids.

 

JusticeInfo.net Charter on Moderation