Kenya’s court confounds the coup-prone image of Africa

by FT

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Kenyan Supreme Court judges arrive for a hearing of a petition challenging the election result filed by the National Super Alliance (NASA) coalition and Human Rights groups at the Supreme Court in Nairobi, Kenya August 28, 2017. REUTERS/Baz Ratner

NAIROBI – Last week, a man wearing red-white-and-black robes sat at a bench in a small room in Nairobi and said a few words that reverberated around the continent. If Donald Trump and Kim Jong Un had not been playing a game of nuclear chicken, it might have reverberated around the world.

The man was David Maraga, the chief justice of Kenya, and the words he spoke annulled the result of the just-concluded presidential election. The poll will now have to be run again in October. His judgment was a first of its kind in Africa and hardly common elsewhere. He declared that August’s presidential election had been marred by “irregularities and illegalities”, depriving Kenyans of their constitutional rights. It was a stunning victory for what Mr Maraga called fidelity to the constitution and the rule of law.

The majority decision of the six-member court — there were two dissenting voices — sent a thunderous message about the sanctity of elections and judicial independence. That message should resonate from Washington to Pretoria and from Manila to the Democratic Republic of Congo, where institutions are struggling to rein in leaders gone rogue.

There has been much to admire in Kenya. The bravery of Mr Maraga was matched by the equanimity of ordinary Kenyans, who reacted to his decision with absolute calm. Supporters of Raila Odinga, the petitioner and opposition candidate, celebrated a chance to compete again. But even followers of Uhuru Kenyatta, the incumbent whose second term was at least temporarily snatched, generally welcomed the verdict as a victory for democratic integrity.

President Uhuru Kenyatta was so angry he almost seemed to slur his words. Yet his incandescence aside, there was never any doubt he would accept the court’s verdict

Mr Kenyatta was less magnanimous, calling members of the court “thugs” and suggesting (ridiculously) that they had been paid by foreigners. The president was so angry he almost seemed to slur his words. Yet his incandescence aside, there was never any doubt he would accept the court’s verdict. There was even less chance that he would call in the army.

The world still regards Africa as a continent of coups. That view is hopelessly out of date. In 1990, 12 African leaders owed their position to a military putsch, with only six in charge as a result of multi-party elections, according to the Brookings Institution. By 2016, 45 leaders had gone through a multi-party process — many, admittedly, far from perfect — with none in sub-Saharan Africa having gained power directly through a coup d’état.

Yet Kenya is the story of an institutional glass half-full. If the supreme court dressed itself in glory, the electoral commission was covered in a less fragrant substance. The court had to step in only because the commission was unable to run a credible election.

Although voting itself was orderly and peaceful, the electronic transmission of results was a shambles. Many polling stations were unable to beam up data due to inadequate mobile coverage. Forms bearing the results went missing and, when they turned up, were sometimes without watermarks or serial numbers. Even before that, faith had been shaken in the system when the commission’s man in charge of IT was found murdered days before polling day. Rumours spread that his fingertips had been removed to provide his assailants with the means to access electoral servers.

It is immensely frustrating for the people of Africa — who show an overwhelming support for democracy, according to opinion polls — that it is so hard to count their votes. Much of this is deliberate. Incumbents install systems (and people) they can control and, if necessary, manipulate. The sanctity of elections depends every bit as much on those running electoral commissions as it does on those presiding over the courts. In Nigeria, it was the actions of Attahiru Jega, electoral commission chair, who ensured the integrity of the 2015 election in which the incumbent, Goodluck Jonathan, lost.

It is a matter of urgency that countries design voting systems in which people have faith. A properly monitored, paper-based system may be better than a half-baked electronic one. One of Africa’s most credible recent elections came in Gambia where people voted with marbles and the tally was carried out under public scrutiny. In those elections, voters booted out Yahya Jammeh, who had been in charge for 22 years.

The court verdict in Kenya is not without its dangers. The electoral commission will not be able to get itself in credible shape in the 40 days available. Nor is it clear that either presidential candidate is prepared to concede. Kenyans have been patient throughout the whole, expensive, fiasco. They deserve better.

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