First published Sunday Standard, September 3, 2017. Kindly reproduced here with permission from Standard Group
There is nothing like a Supreme Court Presidential election ruling to simultaneously give tens of millions of people whiplash. Dancing in happiness or staggering in shock has followed the unequivocal ruling that the IEBC mismanaged our August 8th Presidential elections. Regardless of our preferred candidate, it is incontestable that the constitutional revolution we voted for in 2010 just showed up again.
This week, NASA lawyers James Orengo, Otiende Amollo and Pheroze Nowrejee and the team delivered a detailed and spirited argument that massive irregularities and illegalities had manipulated the transmission of the results before the Supreme Court. Nevertheless, they seemed to be up against the weight of history. Only in a handful of countries internationally and Kenya is not one of them, has a court nullified a Presidential election in the presence of a sitting President.
It is extremely rare for legal petitions to overturn Presidential elections. It is this that has informed the cynical common argument; “Show me one election in which an incumbent lost”. It is this that has fueled elections as a zero-sum violent exercise.
Led by Chief Justice David Maraga, this Supreme Court ruling is a victory for all who believe in the power of the ballot and the independence of judiciary. It also drives the final nail into that coffin called “the President is above the law”. It can only renew a confidence in the Kenya’s democratic institutions. NASA’s tactical change from appealing to the court of public opinion to the Supreme court vindicates their strong protests that the process was rigged. It also marks their place in global electoral history. Constitutionalism has triumphed. Our only regret is that Maraga will turn 70 and retire one year before the 2022 elections. All understudies need to sit up. The standard has been set.
The ruling may also upset the newly sworn in National Assembly and Senate in at least two ways. A rash of election petitions and by-elections based on this ruling could cause the two Houses of Parliament to spin like revolving doors in the coming months. Secondly, it will be interesting to see what impact this would have on the dominant Jubilee majorities in both houses.
Early in the week and prior to the ruling, confident Jubilee leaders had argued that their new dominant majority would allow them to push through the Executive’s will. There are now reasons to suggest this may be premature but this position also lacks an understanding of the primary role of Parliament as a check and balance to the Executive, any Executive.
Like many, I watched the diversity of men, women, persons with disabilities and professionals with pride as they were sworn in. Aged between 23 and 74, former small traders, university students, lawyers and NGO leaders now sit alongside veteran politicians in both houses.
Together they must focus on providing principled oversight of national and county Governments, especially now most of the newly elected Governors have signed integrity codes and are demanding independent corruption audits. Reviewing all the leadership integrity legislation that created loopholes for corruption would be a starting point. So too would be enforcement of the leadership integrity code.
Our legislators must urgently address the legal gaps in enforcing the two thirds gender rule, meaningful public participation and the right to health and food security. Could this Parliament be the one that makes public the records how the legislators contribute and vote not only on the floors of the houses but also in the committees? It would be useful to include Mzalendo Trust, a parliamentary watch body and their new online Dokeza platform in the orientation of all legislators.
Recently endorsed by both Houses of Parliament, Dokeza seeks to radically change public participation by providing an online platform to engage your legislator. Before Dokeza, citizens had to rely on newspaper advertisements to know which bills were before the Parliament for debate and enactment. This is no longer the case. Citizens can now use this easy to use platform to engage their leaders and upcoming bills
IEBC must be reconstituted and restore public confidence to manage the re-election. Let us set aside calls to secede or burn our voters’ cards and clear our calendars once again to come out and vote. We now know vigilance stops election offences. Let us also guide our new national and county legislators so they can work for us and not for themselves.
If we do all of this, we could just be a match for the Supreme Court’s fidelity to our constitution.
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