Kenyan Elections: Mixed feelings

 “Africa is Rising!”. This popular cliché came first to mind following the announcement of the 4-2 majority decision by the Kenyan Supreme court to annul the 8th August 2017 presidential elections results and order fresh one. The reason? It “was not conducted in accordance with the constitution” and therefore the winner “was not validly declared as the President elect”. Ordinarily, such a decision should get me excited, especially considering the arguments being proffered that this is a sign, that also in Africa, the judiciary can be independent from the executive; and, this was a notice being served that, election-related disputes could be settled in a civil rather than violent manner on the continent. Well, at first look, that seems the most prominent, and ‘politically correct’ interpretation. After all, who would not want to see a strong judiciary in Africa, considering the valid out-cry against the wanton abuse of institutional rule by incumbent governments in African countries? But a closer analysis of the judgement (summary judgement) hints that there is perhaps, a very worrying alternative consequence of such a verdict and its possible domino effect in the region. I am referring to the ‘unintended consequences of the use of law’ in a society with a relatively low literacy rate. I will be presenting three arguments in this regard.

Source: AlJazeera

First, there is the glaring risk that such verdicts give arsenal to those who ply their trade in the inappropriate use of election propaganda. Some may argue that, court orders of such nature only reset the game; they do not award scores to the opposing side. But that argument is weakened when we consider the effect that propaganda and fake news have on the ‘thumbs’ of the populations that cast their votes during such elections. Already, there are signs (on social media) that some of those favoured by the verdict in Kenya are peddling the message that the court declared the elections were ‘rigged’, and that the other party had stolen the verdict. Of course, these were not contained in the courts declaration. But the purpose of such malicious propaganda is clear; to win the sympathy of the electorate. When politicians in Africa become acquainted with the effective use of such propaganda, election petitions would become arenas for generating vile political propaganda rather than for the genuine resolution of election-related grievances.  This risk is very palpable, considering that politicians in Africa are learning tactics from their peers across borders on the continent and beyond. Moreover, this ‘peer-pressure’ won’t affect just politicians. Judges in other African countries may win their independence from executive influence within, but not from external influences from their peers across borders. This risk is plausible considering that the level of media coverage and endorsement being received by this Kenyan decision, was not seen in the Ghanaian case where the decision went in the opposite direction in 2013, and the Kenyan Chief Justice is receiving an applause that his counterpart in Ghana did not get under the respective scenarios. I shudder to guess, that any supreme/constitutional court judge looking on, could conclude, that it would be more popular (and heroic) to rule against the incumbent, than otherwise, if the situation arises again.

Second, the verdict placed more weight on procedure than substance. It said the winner was not validly declared; not that the winner was not validly elected. The possibility then is that, we could miss out on the genuine will of the people, if indeed the majority voted for the incumbent. We could comfort ourselves in the belief that voters are being given another opportunity to confirm their vote, forgetting that many of such people may not have the capability to utilise that second opportunity.

Moreover, the verdict epitomises one of the greatest risks I find with institutional governance in Africa today. I call it the ‘obscene principality of legality over morality’. In many parts of Africa, the application of the law is done per the letter, rather than the spirit. Whilst I argue this mindful of my limitations in understanding the jurisprudence that led to the verdict, it is clear to me that the simple determining question in this case, was: ‘what does the law say’? But I ask other counter questions: is that enough? Should we not be concerned about the contexts surrounding these cases? Are we not concerned that the winners of such elections may in fact be victims rather than perpetrators of the irregularities being referred to, and that we may be letting the real ‘culprits’ (usually electoral bodies) off the hook? I ask these questions with the itchy concern, that if we are going to reduce the validity of elections just to the question of whether, they follow the letter of the law, without paying attention to the context, we will be auctioning democracy and leadership to those who may not necessarily be able to win the hearts of the people, but who can win the semantic argument of which ‘i’ was not dotted, and which ‘t’ was not crossed.

As a consequence, a third concern arises. Which is, we may be creating a fertile economy for constitutional and legal entrepreneurs within and without Africa, who only are good at winning elections for their clients through the law courts and not necessarily through the ballot box. Even more grievous a consequence, is that, we may be sending signals to ‘evil’ incumbents to ‘do all they can’ to make sure that in the case of any election petition, they would have the women (and men) on the bench to serve their interest. In that case, such a ‘rule by law’ would be a very retrogressive consequence of an otherwise positive step towards entrenching the darling ‘rule of law’ in Africa.

In conclusion, I wish to submit that as an academic interested in governance issues, I have argued this position with influences from three main spheres. First, the theory of how the rule of law elicits unintended consequences; second, the tension I experienced, first-hand, during the election petition in Ghana in 2013; and third, the media report and discussions I have followed in the aftermath of the 2017 Kenyan scenario. From these influences, I have come to appreciate that, events mean different things to different people based on their interests. For that same reason, let me end this article by making my point as simple as I could: ‘The growing phenomenon in Africa where actors address election-related grievances in a very civil manner through the court rather than through violence is a very positive development. But in doing that, we should be aware of the possibility that, mischievous stakeholders may take an unintended cue and abuse the rules for malicious gain.’

Dennis Penu

Dennis Penu

Staff Writer at InPRA
Dennis Penu is a Ghanaian, and a Principal Research Assistant with the Institute for Development Studies at the University of Cape Coast, Ghana. He holds an advanced master's degree in Governance and Development studies from the University of Antwerp in Belgium and a research master’s degree in Peace and Development Studies from the University of Cape Coast, Ghana.
Dennis Penu

Latest posts by Dennis Penu (see all)