Kenyan presidential election moves into extra time

To describe the 4-2 decision of the Kenyan Supreme Court as a shock is mild. It sent waves all over the world. In the United States, old glory, the New York Times was forced to retract an editorial praising the conduct of the elections.
Former US Secretary of State John Kerry was attacked for endorsing the poll as head of a team of observers.

Most observers generally endorsed the poll as free and fair, including the AU, EAC and a preliminary report by the Commonwealth.
Writing from these pages after watching the first two days of the election petition, the case looked like a sleeper prosecuted pro-forma until a number of prayers were granted to the petitioners.

First the IEBC, which had stonewalled on information requests would have to yield and grant access to its machinery and data to not just the parties, but to the Court itself, which hired its own experts.

In 2016, in the Ugandan Supreme Court hearing the presidential election, this issue was contentious, data sets produced painted a near uniform 85-100 per cent outcome for one candidate in certain districts. This evidence and analysis never saw the light of day.
Reading the framing of the issues before the Supreme Court, it is, however, easy to see what we outsiders overlooked.

The first issue asked the court to decide whether the election had been conducted in accordance with principles laid down in the constitution. This hasn’t been the case ever.
In Uganda, the presidential election petitionis pursued as a simple complaint. The Supreme Court and Court of Appeal have bounced on each other the responsibility to determine whether the election must meet a certain threshold of decency for the outcome to hold.
In a hush decision in 2015, the Court of Appeal bounced the responsibility to the Supreme Court.

In a case filed in 2009, FDC lawyer Dan Wandera Ogalo was given just a weekend to hastily argue his case, in 2014 five years after the case was filed, the case was meant to introduce certain civility before the 2011 elections. The authors of this judgment felt it was the Supreme Court to make those calls as the final constitutional court.
In 2016, they did the opposite ignoring State high-handedness and police brutality to uphold the result holding that State misconduct did not “substantially” affect the outcome of the election.
Kenya’s Supreme Court found that there were irregularities and illegalities which impacted on the “integrity” of the election.

Integrity is a big word in Kenya, but it also has religious connotation.
Chief Justice David Maraga, an SDA adherent, was able to strike where both Catholic and Protestant justices (no Muslim sits on either court) have failed to nail in the middle that integrity actually means the truth. The IEBC did so badly in the custody of the information in their possession that they positively “lacked integrity”.

In Uganda, it has become a favourite thing on social media to wait for Dr Badru Kiggundu to weigh in on any contest even after he retired from the Electoral Commission. In the Kyaddondo East race, Kiggundu famously broke out on social media announcing a Bebe Cool win overturning the networks which had announced a Bobi Wine resounding victory.
Maraga has touched into a malaise that has afflicted institutions in Africa.

By reading out the law plainly, he has overturned decades of jurisprudence not just in the Commonwealth or Africa, but also everywhere.
The US Supreme Court in 2000 famously demurred on whether to recount ballots in Palm Beach Florida using a standard different from that employed elsewhere in the state on election day saying it violated the equal protection guarantees in the constitution.
Given that IEBC flaws were “not blamed” on the third respondent Uhuru Kenyatta, it was clear that the court without saying so, said he was the beneficiary of the IEBC digital logjam.

Mr Ssemogerere is an Attorney-at-Law and
an Advocate. [email protected]