It is historic. It’s earth-shaking. It’s an earthquake. It’s unprecedented. It has never happened.
All these adjectives (and that noun) are apt. What happened in Kenya on Friday last has no precedent anywhere we know of.
That an electoral body announces results which favour the incumbent, and the incumbent is declared president-elect and then a court of law comes up with a decision that declares the election null and void… well, that is unheard of, not only in Africa but everywhere I have had the chance of hearing of.
Even people who had cause to believe the election was not free and fair and who wished Raila Odinga had been elected, or even wished the result could be overthrown, had doubts as to whether the Supreme Court could reverse the results and order a fresh election.
But here we are. Kenya’s presidential election has been annulled and the Kenyan voter called upon to go back to the polls in 60 days. The tables have been turned, the trend has been bucked and history rewritten.
How has this happened? It boils down to the degree of independence enjoyed by the Judiciary. There is no doubt that the Kenyan Judiciary, despite all the problems they may have which are endemic in all our courts of law, is alive and well.
But the high degree of the independence of the judges would not even be talked about outside a constitutional arrangement that allows for it. The Kenyan judiciary is made up of judges who are recruited according to the 2010 constitution, which provides for very high standards of probity and scrutiny. The judges are not necessarily beholden to the Executive the way they are in some countries I know of, but will not name.
Now, even the ultra conservatives in the other African countries will recognise the importance of re-examining their constitutions and rewriting them with a view to giving their people a level playing field in which to practise politics.
The natural and logical trend in the running of the affairs of society should be characterised by deliberate efforts to always move higher and to always do better on the long journey in a people’s development.
All too often we witness violence every time there is an election in an African country. This may be because our people have never been coached on the civility of these things, and they are being shoehorned into alien systems they do not understand.
But it may also be because in our do-or-die elections, losers lose everything: They are disenfranchised, marginalised, ostracised. The winner takes everything: Political power, economic might, cultural ascendency and psychological comfort.
The feeling of impotence that is visited on the vanquished becomes compounded if they think they were robbed and cannot find a forum that will listen to their grievances.
That is where the importance of having a constitutional provision that allows for a judicial review comes in handy. I know in many of our countries with such reviews they are only perfunctory and their decisions are predictable, even before the sessions commence. But at least there is something on which improvement is possible.
In backward systems such as we have in many countries, the chairman of the electoral body could, theoretically, declare any of the contestants — and maybe even a non-contestant — the winner and get up and leave the room, and that would be it.
It beats my understanding why grownups cannot see that such a thing could never happen, simply because they believe in the sanity of somebody called “chairman”.
Yet in Kenya we once had such a chairman declare he did not know who had won the election a day or so after he declared a “winner” and he had even been sworn into office.
But, while National Super Alliance celebrates and Jubilee ruminates, I ask you to spare a thought for all those election observers whose overrated verdicts of “free and fair” confer a dubious badge of respectability to our processes.
Did they see what the judges saw? Or is the whole observation thing a sham because the observers are on the ground for only a few days and cannot be expected to see the hidden hands of the Richter clock as it ticked toward this seismic event?
Either way, we are called upon to rethink and reinvent these observer missions. Or scrap them altogether, maybe?
Jenerali Ulimwengu is chairman of the board of the Raia Mwema newspaper and an advocate of the High Court in Dar es Salaam. E-mail: [email protected]