Globally, it is a rarity for courts to nullify presidential election results; in Africa this was totally outlandish – that is until the Supreme Court in Kenya on September 1, 2017 annulled the re-election of Uhuru Kenyatta.
The shock that followed the Supreme Court verdict reverberated across Africa and is unlikely to die anytime soon, especially in Kenya where successive general elections have been dogged by concern of vote rigging and political instability, as highlighted by the violence that followed a disputed 2007 election when more than 1,200 people were killed.
“The Supreme Court decision for a repeat of the presidential election means Kenyans have an opportunity to truly elect a leader through the ballot  as per the Constitution and without manipulation of votes,” says John Mwandu, a political analyst in Nairobi.
The Independent Electoral and Boundaries Commission (IEBC) has tentatively scheduled the rematch between President Uhuru Kenyatta and Raila Odinga for October 17, 2017.
But as campaigns for the new election got underway, the fear of violence that has characterized recent Kenyan elections has only intensified as both sides rallied their supporters.
“While one could understand the initial euphoria and outrage that greeted the ruling, sobriety should have taken over as the dust settled and the reality of the ruling sunk in. However, each day has brought a new barrage of threats, insults, half-truths and ethnic slurs that do not augur well for a peaceful outcome in six weeks,” Gabriel Dolan, a Catholic priest based in Kenya’s second-largest city of Mombasa said in a commentary.
“In fact, the country appears to be more polarized now than before last month’s general election,” he added.
Kenyatta’s campaigns for the new elections have dwelled on bashing the Supreme Court for allegedly going against the will of the majority by nullifying the August 18, 2017 election results in which he was declared the winner by a margin of 1.4 million votes against rival Odinga.
Just hours after the Supreme Court handed its decision, Kenyatta called the Chief Justice David Maraga, and the three other judges who supported the verdict, crooks. His successive campaigns have since taken on a similar pose of hard-stance politics and personal attacks both against the Judiciary and Odinga. Kenyatta has repeatedly called his rival a witch doctor, a perennial loser and one full of riddles.
Odinga has too adopted a similar fashion of campaigns and regularly made personal attacks against Kenyatta. The veteran opposition leader, for instance, accused the president of making a televized national address while drunk. He also called Kenyatta a thief who should be languishing in jail for stealing elections.
“It is unfortunate that the campaign messages have turned personal and animosity is getting to a fever pitch among the supporters of both candidates. It is no longer about policies but hate speech and insults which is dangerous as the country goes back to elections. There may be violence at the end of it all,” says Mwandu.
<a href="http://www.forbesafrica.com/politics/2017/09/05/kenyas-supreme-court-given-impossible-deadline-repeat-election/" target="_blank" rel="noopener">READ MORE: Kenya&#8217;s Supreme Court has given an impossible deadline for the repeat election</a>
Hate speech from supporters of Kenyatta and Odinga have spread to social media, where some of them openly insulted and threatened each other.
Analysts say the Supreme Court verdict offers an opportunity to streamline Kenya’s electoral system that has been synonymous with systemic cheating.
“What the ruling did was put temporary brakes on the rollercoaster of impunity that has characterized almost every election in Kenya,” wrote Rasna Warah in a column in Kenya’s largest newspaper, Daily Nation.
“The ruling may not end impunity in Kenya’s electoral processes but it will have a far-reaching psychological impact on the citizens, who have been led to believe that peace is synonymous with justice,” she added.
In 2013, Odinga filed a case in the Supreme Court against Kenyatta’s election but it was thrown out on technicalities – leaving many suspicious over the conduct of the IEBC. Dissatisfied with the court decision, the opposition held a series of demonstrations that forced the disbandment of the commission ahead of this year’s elections.
But, with the radical court action, this time there is hope of laying bare the activities of the IEBC and restore legitimacy to Kenya’s elections.
“If there have been crooks manipulating voting outcomes in Kenya then things may be different going forward because the Supreme Court has proved impunity and blatant disregard of the law is punishable,” says Mweni Matheka, a governance researcher.
Other sovereign institutions, including the Ethics and Anti-Corruption Commission (EACC), the Office of the Auditor-General and the IEBC itself, may want to borrow a leaf from the Supreme Court and assert their independence.
All these institutions have been subject to political pressures, especially when their work went against the whims of the government.
Just after the August 8 polls, Leader of Government Business in Parliament, Aden Duale, declared that the ruling coalition would use its majority in Parliament to oust Auditor-General Edward Ouko whose office has had run-ins with the executive over explosive audit reports that showed theft and misuse of public funds.
<a href="http://www.forbesafrica.com/politics/2017/08/11/kenyas-2017-poll-palpable-tension-progress-status-quo/" target="_blank" rel="noopener">READ MORE: Kenya&#8217;s 2017 poll: palpable tension between progress and the status quo</a>
The IEBC has not been spared the heat from both the executive and the opposition, especially after the bungled polls. Both sides have demanded to have a say in the composition of the IEBC team that will manage the repeat polls.
But in separate letters to the ruling Jubilee coalition Secretary-General Raphael Tuju and the opposition National Super Alliance Co-Principal Musalia Mudavadi, IEBC Chairman Wafula Chebukati on September 6 said the commission reserved the right to make changes without being directed by any of the political groups.
“Please note that the commission is an independent constitutional body, which as per Article 249 of the Constitution shall not be subject to direction or control by any person or authority,” Chebukati said in his letter to Tuju.
“It is therefore unacceptable for you to provide a list of staff that you direct us not to consider for the project team.”
The business community looks forward to conclusion of the elections to restore normalcy in the economy. The Kenya National Chamber of Commerce and Industry (KNCCI) estimates that the country’s economy has lost Sh21.3 billion ($210 million) since the Supreme Court ruling, as investors adopted a wait-and-see attitude. &#8211; Written by Allan Akombo

‘There May Be Violence At The End Of It All’

The Kenyan Supreme Court has found that the August 8 presidential election result is invalid. It blames the electoral commission, not the declared winner, Uhuru Kenyatta. Kenya’s leading newspaper praises the decision as a <a href="http://www.nation.co.ke/oped/Editorial/Supreme-Court-ruling-has-restored-rule-of-law-/440804-4079912-3cupekz/index.html" target="_blank" rel="noopener">step towards the rule of law</a>, but I am less sure about what this means for the ability of the political establishment to stick to the terms of the country’s constitution.
The Supreme Court has given the country 60 days to hold fresh elections. The time period is in accordance with section 140 (3) of the <a href="http://www.kenyalaw.org/lex/actview.xql?actid=Const2010" target="_blank" rel="noopener">Constitution</a>, but the court failed to tell the public exactly what the Independent Electoral and Boundaries Commission <a href="https://www.iebc.or.ke/">(IEBC)</a> had done wrong. This leaves Kenya with a compromised commission rerunning an election.
Chief Justice David Maraga <a href="https://www.youtube.com/watch?v=bLEQ72t2czs&amp;t=1216s" target="_blank" rel="noopener">noted that</a> the court had previously failed to provide a full judgment on the 2013 elections and this had not been received well. He then did exactly the same. Of course, the court had to provide a judgment on the opposition’s petition within 14 days, as stipulated by the Constitution. This is the period before the president-elect is inaugurated. The court would have sparked a constitutional crisis if it had not made any decision.
<a href="http://www.forbesafrica.com/politics/2017/06/15/will-decide-kenyan-election-dose-faith-tribe-hard-cash/" target="_blank" rel="noopener">What Will Decide The Kenyan Election? A Dose Of Faith, Tribe And Hard Cash</a>
But by not explaining how the IEBC has failed, the court has created a problem. It’s impossible to organize the next election and reform the commission in the time given.
<h2>Time pressure</h2>
The court gave itself up to 21 more days to deliver its full judgment. This would leave the country with only 39 days before the fresh election. Already, opposition leader Raila Odinga has <a href="https://www.standardmedia.co.ke/article/2001253339/raila-declares-fresh-war-on-iebc-lambasts-international-community" target="_blank" rel="noopener">declared</a> that his coalition will refuse to participate in presidential elections under the current leadership of the IEBC.
But, as a newspaper commentator <a href="https://www.standardmedia.co.ke/article/2001253324/why-it-s-not-feasible-to-replace-iebc-commissioners" target="_blank" rel="noopener">observes</a>, it’s just not feasible to remove IEBC commissioners without a tribunal, which is then reviewed by parliament. Complicating matters further, three citizens have filed a <a href="https://www.standardmedia.co.ke/article/2001253334/three-kenyans-want-iebc-commissioners-barred-from-polls" target="_blank" rel="noopener">separate petition</a> to ask the courts to remove certain IEBC officials over their wrongdoing.
Even once the full judgment is handed down within 21 days of the ruling, it probably won’t indicate criminality at the level of individuals. The Supreme Court was asked only to determine the validity of the election overall. Its full judgment can indicate how the process of the election must be improved.
The election was judged to be void because the electoral commission was at fault. This suggests it must change its procedures – and perhaps its personnel – if better elections are to take place. A new election must avoid the errors of the previous one.
Political scholar Gabrielle Lynch <a href="http://www.nation.co.ke/oped/Opinion/Key-lessons-for-election-team-as-Kenyans-return-to-ballot-/440808-4079934-roelpv/index.html" target="_blank" rel="noopener">explains</a> some of the corrections that have to be made. These include the process for transmitting results, the use of security forces and the uneven use of state resources.
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Few of these suggested corrections will be feasible within the allotted timeframe.
<h2>Serious problems</h2>
Indeed, the problems are serious. Months before the election was held, the courts <a href="http://www.nybooks.com/daily/2017/08/30/kenya-the-election-and-the-cover-up/" target="_blank" rel="noopener">ordered</a> the IEBC to stop printing ballot papers, because of <a href="http://www.theeastafrican.co.ke/news/Dispute-ballot-printing-tender-Kenyan-election/2558-3974504-2no9fv/index.html" target="_blank" rel="noopener">claims</a> that the Dubai-based firm Ghurair held too many links to Kenyatta.
The claim against Ghurair was <a href="https://www.the-star.co.ke/news/2017/07/20/nasa-loses-cross-appeal-on-uhuru-links-to-al-ghurair_c1600686" target="_blank" rel="noopener">dismissed</a> due to insufficient evidence. But part of the IEBC’s successful defence against the court order was the time pressure of having to hold an election in a few months’ time. If time pressure was a valid reason then, why would it not be now? Why would an even more rushed election be credible?
The <a href="http://edition.cnn.com/2017/08/03/africa/kenya-election-official-chris-msando/index.html" target="_blank" rel="noopener">murder</a> of the IEBC’s IT manager, Chris Msando, will now be under even closer scrutiny by the media. But even if the crime was directly related to the muddled tallying of votes, there isn’t time before the rerun to find individuals guilty. It is highly unlikely the full Supreme Court judgment will touch upon this tense topic. And that further reduces the credibility of the current IEBC.
<h2>Credibility concerns</h2>
The wider concerns with the IEBC date <a href="https://www.amazon.co.uk/Shadow-Kenyan-Democracy-Widespread-Expectations/dp/147246768X" target="_blank" rel="noopener">back to</a> the “Chickengate” scandal. A UK court found a UK firm had <a href="http://www.businessdailyafrica.com/How-UK-sleuths-unearthed-Kenya-scandal/-/539546/2527142/-/12a1fcrz/-/index.html" target="_blank" rel="noopener">bribed</a> the IEBC (then the Interim Independent Electoral Commission) to get the contract to print ballot papers for the 2010 Kenyan constitutional referendum.
The UK co-conspirators were <a href="http://www.bbc.com/news/uk-england-sussex-31444228" target="_blank" rel="noopener">found guilty</a>. But no-one from the Kenyan side was put behind bars by Kenyan courts. This created mistrust of the IEBC leaders. The current crisis will revive past anxieties like these, but leave no time for meaningful reform.
In Kenyan elections, local witnesses must sign the official forms to say the local tally is accurate. Central tallying organized electronically must then match with these local forms. The election is considered free and fair if this is done properly. The Supreme Court has ruled that both the IEBC as a whole and its chairperson, Wafula Chebukati, are responsible for the failure on 8 August.
Chebukati has <a href="http://nairobinews.nation.co.ke/news/chebukati-storm-not-quitting/" target="_blank" rel="noopener">refused to stand down</a>. His response doesn’t boost public confidence in the institution. If the public is to trust the rerun, he must go.
<h2>Asking for more time</h2>
The IEBC should then petition the Supreme Court to give it more time.
It was done before, when the 2013 election was <a href="http://www.theeastafrican.co.ke/oped/comment/Unrealistic-timelines-blame-for-Kenya-electoral-flaws/434750-3798034-ecoaogz/index.html" target="_blank" rel="noopener">delayed</a> because of the difficulty of implementing aspects of the new Constitution.
Section 86 of the Constitution requires the IEBC to collate the results of an election openly and accurately. At present, it can’t meet this requirement because it does not know what it must do differently from before. The IEBC should therefore depend on Section 86 when it asks the Supreme Court for more time. &#8211; Written by <a href="https://theconversation.com/profiles/dominic-burbidge-405209" target="_blank" rel="author noopener">Dominic Burbidge</a>, Postdoctoral Researcher, Faculty of Law, University of Oxford
Originally published in <a href="https://theconversation.com/africa" target="_blank" rel="noopener">The Conversation</a>
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Kenya’s Supreme Court has given an impossible deadline for the repeat election

In October 2015, Oscar Pistorius, the South African double amputee Olympian runner sentenced to five years’ jail for the culpable homicide of his girlfriend Reeva Steenkamp on Valentine’s Day 2013, was released for correctional supervision.
He spent 10 months behind bars, and will now be under house arrest.
The world’s media gathered outside Pistorius’ uncle’s home in Waterkloof, near Pretoria, South Africa, for a glimpse of the athlete, but the family instead sent out spokeswoman and former journalist Anneliese Burgess, who said:  “He is simply entering the next phase of his sentence now. He will serve this under strict conditions that govern correctional supervision.”
Pistorius’ prosecutors have now appealed to the Supreme Court to scale up his sentence from culpable homicide to murder.
Karin van Eck, a lawyer at Clarke &amp; Van Eck Attorneys in Pretoria, says the situation could change.
<div id="attachment_30942" style="width: 310px" class="wp-caption alignnone"><img loading="lazy" decoding="async" aria-describedby="caption-attachment-30942" class="size-medium wp-image-30942" src="http://www.forbesafrica.com/app/uploads/2017/05/000_Par8117606-300x200.jpg" alt="" width="300" height="200" srcset="https://cms.forbesafrica.com/wp-content/uploads/2017/05/000_Par8117606-300x200.jpg 300w, https://cms.forbesafrica.com/wp-content/uploads/2017/05/000_Par8117606-600x399.jpg 600w, https://cms.forbesafrica.com/wp-content/uploads/2017/05/000_Par8117606-768x511.jpg 768w, https://cms.forbesafrica.com/wp-content/uploads/2017/05/000_Par8117606-1024x681.jpg 1024w, https://cms.forbesafrica.com/wp-content/uploads/2017/05/000_Par8117606.jpg 1023w" sizes="(max-width: 300px) 100vw, 300px" />June Steenkamp, Reeva Steenkamp&#8217;s mother.</div>
“If the state is successful in their appeal, then that would mean that he’s found guilty of murder and that would influence the sentencing and he doesn’t qualify for correctional supervision,” says van Eck.
The courtroom dramas that sent the athlete to prison in 2014 had been watched by the world. People wondered what was going to happen to him; but what about Reeva?
Thousands expressed outrage over Pistorius being the focal point of the trial, prompting #HerNameWasReevaSteenkamp to trend in defiance.
Reeva’s mother June Steenkamp was the face of the family throughout the trial but broke her silence for her book Reeva: A Mother’s Story, released in 2014.
In addition, June has now launched a foundation to help women and children who are victims of domestic abuse as her way of keeping her daughter’s legacy alive.
In October 2015, dressed in a black jacket, June had addressed students at her daughter’s old school in Port Elizabeth, South Africa, saying: “I will now carry on where she left off”. She read out excerpts of the speech her daughter was going to make to students the day she died.
In the televized address, she also said: “I have got no feelings of revenge. I don’t want to hurt [Pistorius]. He is already a disabled person. I did not want him to be thrown into jail and suffering because I don’t wish suffering on anyone and that’s not going to bring Reeva back.”
Nooshin Erfani-Ghadimi, project manager at Wits Justice Project, a program of the journalism department at the University of the Witwatersrand in Johannesburg, reckons the wheels of justice turn slowly, and the case is not over, yet.
“What we want to see, in order to have a fair and just system, is the same amount of attention being paid, as has been paid to Oscar’s case, as to the myriad of cases in the system which are the cause of miscarriages of justice for victims, families, the accused and their families too.”
The jury is still out.

ED_0020953

But What About Reeva?

The issue of term limits for presidents in Africa is a hot one fanned by unrest in Burundi.
South Africa’s President Jacob Zuma recently condemned leaders who tamper with their constitutions to stay in power. His comments could have been directed to Burundi’s Pierre Nkurunziza who lent on the Supreme Court to alter the constitution to extend his stay to three terms. Nkurunziza argues that the first term negotiated by a peace process doesn’t count.
“This business of us agreeing to serve two terms, only to realize 10 years is too short, is a problem,” Zuma is reported to have said in the aftermath of civil unrest in Burundi.
Constitutional law lecturer at Kent University in Britain, Alex Magaisa, says too many political elites violate their constitutions to stay in office.
“This is a dangerous trend in a number of African countries and we have just seen how this can lead to chaos and instability with the failed military coup in Burundi. This is why in Burundi’s neighbor, Rwanda, is of some concern over rumours that President [Paul] Kagame’s stay in office may be extended beyond the term limits. He has probably done a great job for Rwanda, but extending his stay in office will send a very bad message,” he says.
“The notion that a leader is indispensable is an indication of poor leadership because a leader must be able to nurture talent and promote potential successors.”
The Hong Kong-based political analyst, Obert Hodzi, says most of the African leaders wanting to rule for life usually prosper in countries with weak institutions.
“The reason is that all those countries, which include Uganda, Zimbabwe, Equatorial Guinea, Cameroon and Angola, are characterized by extractive political and economic institutions that only benefit the political elite and disenfranchise the majority of the countries’ citizens. For the leaders of those countries and their patronage networks to continue enriching themselves, they will need to monopolize political power and stay for as long as they possibly can,” he says.
The presidents of Chad, Gabon, Guinea, Namibia, Togo, Uganda and Algeria managed to change their constitutions to prolong their stay. Other countries’ presidents, such as Zambia’s Frederick Chiluba, Malawi’s Bakili Muluzi and Nigeria’s Olusegun Obasanjo, tried to change constitutions but failed to bend the people’s will. Zimbabwe did not have term limits until 2013; while Comoros, Algeria and Uganda remain without.
As the African Union (AU) met in South Africa, Ghana’s vice president, Kwesi Amissah-Arthur, urged the AU to debate term limits as it could be a solution to Africa’s life-time presidents. This could be tricky, especially when the chairperson of the continental body, Zimbabwe’s President Robert Mugabe, has been at the helm of his country for 35 years. In 2018, he is expected to seek a fresh mandate in Zimbabwe. If he wins, he will be 99 years old when his term expires and Zimbabwe’s leader for 43 years.
Life-time leaders threaten democracy. But leaders of troubled countries, like Rwanda, argue for them. Word is Kagame may seek a third term.
“It is irrational to change exemplary leadership [Paul Kagame] and more so in our context even in the name of constitutionalism,” Rwanda’s former finance minister, Manasseh Nshuti, is reported to have said.
The country’s opposition disagrees. The Democratic Green Party of Rwanda has filed a lawsuit demanding the Supreme Court block any move by parliament to change the constitution to allow Kagame a third term.
“The Democratic Green Party of Rwanda demands the Supreme Court&#8230; to order the Rwandan parliament not to change Article 101 of the constitution,” the party said in a statement.
In neighboring Burundi, around 40 people have died, 100,000 citizens fled to Tanzania, Rwanda and the Democratic Republic of Congo, over the issue of a term too far. Those fleeing violence are living at the Kagunga, Lake Tanganyika Stadium and Nyarugusu camps in Tanzania.
Burundians protesting against Nkurunziza’s bid for a third term are not alone. Late last year, Burkina Faso saw street protests that pushed out former leader Blaise Compaoré, who wanted to stay in power beyond the elections he won in 1991, 1998, 2005, and 2010.
But what about elections?
Yolande Bouka, a researcher in the conflict prevention and risk analysis division at the Institute for Security Studies (ISS) in Nairobi, told CNBC Africa that many governments in Africa create an environment where it becomes near impossible to hold free and fair elections.
“Having elections doesn’t mean that you have a democracy, and that is the impression that has been created. There needs to be more attention paid to the reasons for leaders changing the constitution,” says Bouka.
As the warring parties seem to drift further apart with each passing day in Burundi, many are looking to the AU for leadership to gently remind the continent’s presidents that their time is up.

Tag: Supreme Court

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‘There May Be Violence At The End Of It All’

Kenya’s Supreme Court has given an impossible deadline for the repeat election

But What About Reeva?

How Long Mr President?