The greatness of any nation lies in its fidelity to the Constitution and adherence to the law and, above all, respect for God. David Maraga, Chief Justice, Supreme Court of Kenya, 2017.
Articulated as the preamble to the Kenyan Supreme court ruling delivered on September 1, 2017, the above pronouncement has incontestably become part of the hallowed treasury of axioms proposed as mandatory formative reading for fledgling law students in Africa and beyond.
This statement sets two lofty qualitative criteria as the credentials for any nation’s claims to greatness: intellectual submission to the law in fact and in practice, and assent to the supremacy of the divine dispensation.
The Kenyan presidential election exercises in the 21st century form formidable case studies for students of political science and governance in general to investigate, dissect, analyse and draw weighty conclusions from.
The four presidential election exercises held in 2002, 2007, 2013 and 2017, have each been productive of consequences of national, regional and even global import.
The 2002 election that brought Mwai Kibaki to power was significant because it effectively dismantled the hegemony of the post-independence Kanu party rule of Kenyatta Senior and his successor Daniel arap-Moi that had lasted for 39 years since 1963.
Unprecedented scenes of violence, last seen in Kenya during the 1950s with the Mau Mau movement, characterised the immediate aftermath of the 2007 election exercise that gave Kibaki his second term as president.
In 2012, the world beheld the unsettling spectacle of Uhuru Kenyatta and his deputy William Ruto, both facing charges of crimes against humanity at the International Criminal Court, being legitimised by Kenya’s electorate as the newly-elected presidential duo, the first ever under the new Constitutional dispensation promulgated in 2010.
The charges were subsequently withdrawn for want of evidence. It is interesting to briefly consider the posturing of the two lead political actors in the current unfolding constitutional drama.
The plaintiff in the case, Raila Odinga, who now publicly appropriates the delivered ruling as a personal victory, was, ironically far from the convinced constitutionalist when, even before the legitimate proclamation of the final election results by the Independent Electoral and Boundaries Commission (IBEC), he called for rejection of the election results and the staging of public protests.
Very evidently, resort to the court was, at that stage, not an option for him to consider. For Uhuru Kenyatta, his first televised reaction to the Supreme court ruling was passably statesmanlike in its concession to the authority of the Supreme court.
However, the political capital earned by Kenyatta’s initial statement has effectively been dissipated in subsequent remarks in which he gives unadorned expression to partisan spleen, personality attacks and even threats to ‘fix’ the judiciary, suggesting an underlying unpresidential contempt for the much-vaunted constitutional principle of the independence of the judiciary.
Simply expressed, Odinga’s attitudinal U-turn is political scheming at its most dishonest, while Kenyatta’s own reaction may be likened to the snarls of a wounded lion.
However, identifying the implications of the Supreme court ruling with the fortunes of the two lead political actors risks politicising the verdict. This would subtract from the integrity of the ruling as an exercise of judicial independence.
Effectively on trial was the IBEC whose competence in handling its constitutional mandate has been challenged.
The call by the National Super Alliance (Nasa) coalition for a new commission membership appears to be a cheap shot at political points-scoring, given that Nasa had previously given its considered assent to the terms of reference as well as to the membership of the same commission.
Rather, the ruling draws attention away from the event of presidential election day, on which the glare of global media coverage is focused, to the process of elections, covering even the unpublicised goings-on in remote outposts of the nation.
The substantiality argument, invoked on a number of occasions by the Ugandan judiciary, about whether the reported tallying errors were sufficient to overturn the declared election results, was the favoured quantitative criterion used to pronounce on the validity of the contested election exercise.
Kenya’s Supreme court ruling thus throws its weight behind the intellectual assent to the law in fact and in practice, anything short of this being an indicator of invalidity. It can be argued that what was effectively tantamount to constitutional pragmatism in the substantiality argument has now been countered with what may be described as constitutional idealism.
Documented failures in adherence to the law may no longer be relativized by appeals to expediency.
This ruling sets a new legal precedent to be invoked in similar cases, both in Africa and worldwide. The Supreme court judges of Kenya have raised the bar for strict observance of rule of law in fact and in practice.
The authors are concerned Ugandans.