Why annulment of election in Kenya leaves Uganda looking ugly

Classical Greek philosopher credited as one of the founders of Western philosophy, Socrates, observed centuries ago that four things belong to a judge. These are to hear courteously, to answer wisely, to consider soberly, and to decide impartially.
In performing those four functions, judges defy or confirm William Shakespeare’s truism enunciated in the 1599 play, The Tragedy of Julius Caesar wherein he wrote, “Men at some time are masters of their fates; the fault, dear Brutus, is not in our stars, but in us, that we are underlings.”
And so the Supreme Court of Kenya in sync with both Socrates and Shakespeare’s axioms added September 1, 2017, to the pages of Africa’s political and legal history. David Kenani Maraga (66), Kenya’s 14th chief justice, and three Justices of the Supreme Court, also secured themselves a seat at the table of distinguished jurists.
It takes the courage of Goliath to annul a presidential election anywhere in the world and yet the CJ made history, presiding over the first court in Africa’s recorded post-independence antiquity to annul an election.
In 2013, the same court under Chief Justice Willy Mutunga didn’t find cause to order top contenders Raila Odinga and Uhuru Kenyatta back to the ballot paper, upholding the election.
That landmark judgment speaks to and resonates with Uganda more than any country in the region and perhaps on the continent in terms of relevance, context and lessons. In 2001 and 2006, Dr Kizza Besigye challenged President Museveni’s electoral victory in the Supreme Court and lost the petition by a margin of one justice of the Supreme Court.
In 2011, he declined to seek justice from the court, expressing his reservations with the independence of the judges. In 2016, his attempt to take the battle for Uganda’s presidency to the court room was thwarted by house arrest and police harassment of the Forum for Democratic Change teams working on the petition. This made it humanly impossible to lodge a case in the short window of time under the Constitution and Presidential Elections Act.
Former prime minister Amama Mbabazi successfully launched a legal challenge and lost the petition as a nine judge panel upheld his former boss’ election.

The substantiality test
In the 2013 Kenya presidential election petition, Dr Besigye’s two cases were fervently cited as precedents upon which the court should have thrown out Raila’s petition. Uhuru Kenyatta’s lawyers found fodder in the argument of the Supreme Court in Uganda that whereas the election was not free and fair, the irregularities that marred it, within the strict and legalistic reading of the Presidential Elections Act, didn’t affect the outcome substantially.
There was an attempt to sneak this reasoning in the 2017 petition with the Independent Electoral and Boundaries Commission (IEBC) lawyer Prof PLO Lumumba, deploying his oratorical prowess to advance the argument that out of 15 million registered voters, only 23,000 are in doubt.
Prof Lumumba argued this week: “My lord, the maxim of law is that of small things the law knows no cure. I am submitting that what we have here are petty grievances, administrative errors and no court in the world has ever nullified a presidential election on the basis of what falls under this rule.”
Lumumba’s reasoning is a copy and paste of that of the Ugandan Supreme Court which has been criticised by scholars like Prof Ben Kiromba Twinomugisha of the School of Law at Makerere University, at least for the 2006 decision for ruling to the effect that 150,000 voters who were disenfranchised were not a substantial number to overturn the 932,000 vote margin between Mr Museveni and Dr Besigye.
Critics of this quantitative test of the purity of an election and its fidelity with the Constitution which dictates that the election be free and fair, question the rationale of the court in advancing the argument that irregularities must have had a substantial impact on the election.
How many people, for instance, should have been killed, intimidated and bribed for that outcome to suffice and how is that even measured? Wouldn’t it make sense to focus on the credibility of the election and its compliance with the electoral laws and constitution than narrow assessment to the numbers which accrue from a flawed process?
In the 2001 and 2006 election petitions, Dr Besigye’s lawyers presented damning evidence of massive voter bribery by Mr Museveni’s political and security apparatus.
However, no amount of persuasion by the lawyers that such incidents, coupled with wanton torture, killing and intimidation of Besigye’s supporters left the election outcome in doubt, to the extent that the basic tenets of a free and fair election were defiled by his opponent.
In effect the 2001, 2006 and now 2016 decisions had started to gain currency in the region as persuasive precedent, as we saw in Kenya when Uhuru Kenyatta’s legal team kept referring to the Ugandan decisions. The Friday judgment is a significant departure from and vote of no confidence in the substantiality test buttressed by those three judgments.
The 2017 Kenya Supreme Court judgment in so far as it raises the bar for the Electoral Commission and implores the court to examine the entire process and its adherence with the country’s laws, is a fresh breath of air for jurisprudence.
This leaves Uganda’s Judiciary, which by power of precedent, had started to infect the region with the ‘substantiality test’ line of thought with several points of reflection in adjudication of electoral processes at the presidential level.
CJ Maraga observed that an election is not an event but a process and, “the greatness of a nation lies in fidelity to the constitution, rule of law and fear of God”.
One of the questions the Ugandan Judiciary would ask itself is whether an election that falls short of ‘fidelity to the constitution and rule of law’ such as Uganda has witnessed since 2001 can actually be upheld on the basis of the irregularities not substantially affecting the result.
The Kenyan court is basically advancing the argument that it is not enough to beat your opponent by 1.4 million votes. The numbers must be looked into, with torchlight flashed into the devil lying in the detail, scrutinising the process leading up to the numbers. More like a forensic audit.
Prof John Jean Barya of the School of Law of Makerere University says, “The Supreme Court was not only interested in the numbers but the entire process and examined if it followed the law.”
The book, A Comparative Review of Presidential Election Court Decisions in East Africa co-authored by retired Tanzanian Supreme Court judge Eusebia Munuo, and Ugandan law scholars Prof Frederick Ssempebwa, Dr Busingye Kabumba and Prof Lillian Tibatemwa-Ekirikubinza (Supreme Court justice), makes a case for a qualitative approach to be applied in presidential election petitions.
“Once it is proved that constitutional imperatives and principles of electoral laws have been violated, an election loses legitimacy and should be annulled,” the authors argue. The Supreme Court’s reasoning appears in line with this school of thought, which Uganda’s three justices Tsekooko, Arthur Oder and George Kanyeihamba too, advanced in their dissenting decisions.

Independence of the jury
Retired justice of the Supreme Court Wilson Tsekooko who in 2001 and 2006 held a dissenting decision that Mr Museveni’s election be annulled told this writer in an interview minutes after Kenyatta’s election was declared null and void, “Some of these things are difficult for people to learn from because judges of whatever rank are meant to be independent. The Uganda Constitution requires so and, therefore, when making a decision one considers evidence adduced and decides if they believe that evidence. One tosses the mental coin and decides if they believe the evidence available.”
Prof Barya opines that for independence of the Judiciary to hold in such tensed up circumstances as a presidential election petition, contesting political forces must have a bare minimum level of balance with no overbearing party controlling all the institutions.
A case to illustrate this point is that of Judge Sylvere Nimpagaritse, vice-president of Burundi’s constitutional court. He fled the country in 2015 saying most of the court’s seven judges believed it would be unconstitutional for Pierre Nkurunziza to stand again, but had faced “enormous pressure and even death threats” to force them to change their minds.
Prof Joe Oloka-Onyango, a constitutional law expert, has previously argued that critics of Uganda’s Judiciary must pay attention to the context within which it operates, asserting that, it is not about the election but the place of the State.
“This is a military dictatorship that we are dealing with,” he said, adding that “there is need to liberate institutions of the State from capture by the military.”
Quintessentially that takes away the focus from the legal arguments on the merits of the quantitative versus qualitative test, and how far the courts can go in judicial activism in light of a statutory requirement that the election be annulled if the irregularities affected the outcome substantially.
The discourse then shifts from which legal school of thought; be it positivist, natural, Kelsenian or sociological a judge subscribes to and rests on the independence of the institution to make a decision without fear of consequences. That also means the integrity of the recruitment process is part of the process leading to the fairness or lack thereof, of the court.
In Uganda, President Museveni has been extra cautious in seconding names for appointment for positions at the Supreme Court. A former member of the Justice James Ogoola-led Judicial Service Commission (JSC) in confidence shared how on two occasions the body recommended to the President Justices Remmy Kasule and Egonda Ntende for promotion to the Supreme Court.
Without giving reasons, he cancelled out their names. JSC sent them again. He cancelled again. There was an election coming up a few months before promotions and appointments were made to the Supreme Court and a president who on two occasions came close to having his election annulled was careful whom he placed in the temple of justice whereupon indeed, Mr Mbabazi challenged his election.
Justices Oder, Kanyeihamba and Tsekooko seem to have taught Mr Museveni a lesson about the importance of keeping tabs on who gets to the Supreme Court. He now guards its entrance so carefully that he even attempted, with lopsided advice from then Attorney General Peter Nyombi to return Justice Benjamin Odoki as president of that court and Chief Justice before the Constitutional Court found him out of order for appointing a retired man to the same office.
Odoki in 2001 and 2006 secured Mr Museveni victory at the court so he was a tested and reliable judicial officer if and when the presidential contest ended up in court.
So when Prof Oloka speaks about appreciating the context in which the Judiciary operates, the insistence is not farfetched considering the influence the President wields on the institution.
The Constitutional Court, to its credit, has also delivered some resounding judgments that haven’t amused Mr Museveni, including one in favour of Gen David Sejusa resigning from the army (later quashed by Supreme Court).
Part of the solution a potentially problematic Constitutional Court posed to NRM came in outgoing Deputy Chief Justice Steven Kavuma who’s acted as NRM’s punching bag in the court.
In 2016 when Mbabazi’s supporter Benjamin Alipanga challenged Museveni’s eligibility to run on account of age, amendment of the NRM constitution and the Kyankwanzi sole candidate resolution in different petitions, the case did not seem to go anywhere.
The election went on and the cases were never cause listed. In contrast, in Kenya, the high court heard Nasa’s complaints about the election expeditiously and even ruled in their favour before the government appealed and won. Already the independence of the judiciary was manifest. One could smell the coffee before the blockbuster presidential election petition came to the fore.
In Uganda, it was foolhardy to imagine that a Judiciary which had ignored cases touching the heart of the election, such as Museveni’s sole candidature and age would outmanoeuvre his victory. Kenyatta didn’t have that luxurious political leg room to remote control institutions with unpolished sophistication as his Ugandan counterpart.
Unlike Uganda’s Judiciary which remains within the shooting range of the President’s hand of influence, the Kenyan one has emerged from a process of political reform over the years, right from the Moi days that marked the end of the strongman presidency.
Under Daniel arap Moi, no court would dare annul an election but his departure after more than two decades at the helm eased pressure on the institutions as his successors like Mwai Kibaki no longer wielded as much influence as he did. The 2007 post-election violence which left the conscience of East Africa’s largest economy disfigured came with its own lessons, including a progressive constitution that opened up the process of recruitment of judges to the public.
Mr Wandera Ogalo, who in 2001 and 2006 represented Dr Besigye in the petitions, says: “When you analyse what the CJ said, the conclusion focusing on whether the election was held in line with the constitution and electoral laws, you can appreciate that is the same conclusion the Supreme Court of Uganda came to in 2006 when it said that the election wasn’t free and fair but in Uganda they went to the Presidential Elections Act and referred to that funny thing of affecting the election in a substantial manner.”
He adds that the dictate of the Constitution is that elections be free and fair so to hold that the same process didn’t meet that golden standard and yet uphold it using the substantiality test is problematic.
As Kenya toasts to making legal and political history, its neighbours can only admire with awe because to get a step close to that boldness, the courts and indeed all institutions of the state must be freed from the claws of strongmen; have recruitment of office bearers opened up; and political actors matured to the level of Uhuru who said he disagreed with the verdict but will respect - this in a region where his peers would have sounded war drums.