Kenya Supreme Court is evidence Africa’s battle against strongmen is paying off


Kenya Supreme Court is evidence Africa’s battle against strongmen is paying off

Evans photography.jpg Supporters of Candidate Raila Odinga Celebrating outside the Supreme Court of Kenya. (Photo Credit: Evans)

Kenya’s Chief Justice David Maraga last week encrypted his name on the pages of Africa’s legal and political history, presiding over the first Supreme Court in the continent’s post-colonial record to annul a presidential election. It takes guts to send a sitting president who has just ‘won’ a hotly contested election back home. Even more valour is desired of a judge adjudicating such a sensitive matter in third world countries where constitutionalism, rule of law and democracy remain utopian ideals. This as strongmen continue to roam with reckless abandon in presidential palaces with wanton self-entitlement while masquerading to be serving the interests of the poor, wretched-of-the earth and exploited populations whose resources they suck with parasitic monstrosity.

Even the population is not ready for such extra-ordinary courage; the reason African elite like businessman Andrew Mwenda, intoxicated with this cultural shock, were fast and furious in taking to social media, bemoaning this ‘reckless decision which will come with unforeseen consequences’. I find this line of thought rather problematic. Evidence of the cost of flawed elections is littered all over the continent. Whereas a court decision is no guarantee of the integrity of elections, it is a worthwhile route since ‘people power’ following contested elections has been chaotic. Kenya is a good model yet to be tested, but so far so good basing on the reaction of President Uhuru Kenyatta and his supporters. In 2007, Kenya had its share of post-election violence.

Zimbabwe followed in 2008. Ivory Coast went full circle in 2010. The golden thread interwoven in these incidents is the quality of elections on the one hand and the reaction to the outcome by the people. Elections are not about to be perfect anywhere. It remains work in progress.

CJ Maraga does not expect one too. We are talking about lack of basics which is what concerned the Supreme Court. If you agree to play by the rules, let them be observed. By arguing that the court should have acted on the side of caution is to condemn Africa to lower standards. This is an insult to the people of Africa. We cannot advocate jungle law where election fraudsters can have their way. That said, the blockbuster question here is; how did Maraga and colleagues do it?

To appreciate this, one has to look at Kizza Besigye vs Yoweri Museveni and Electoral Commission election petitions of 2001 and 2006. In both cases, Mr Museveni’s election came close to being annulled with a one judge margin saving the day. Even more, the same judges who in 2001 held that the election was not free and fair and must be repeated held the same view in 2006. Justice Wilson Tsekoko was Milton Obote’s lawyer in 1980 when Museveni sued him for saying he is not Ugandan. Arthur Oder (bless his soul) was also UPC.

Uganda’s post 1986 Judiciary had its glory days when the courts churned out ground-breaking judgments in the 1990s and early 2000s before Mr Museveni systematically moved to water it down; becoming stricter on who becomes judge and eroding judicial independence, especially after 2006 - never mind that we still have some of the finest judges on the continent who wake up every day to dispense justice The challenge Uganda and indeed most of Africa has to grapple with is judicial independence. Kenya’s court could arrive at the decision it did because of the departure of strongman Daniel arap Moi eased pressure on the Judiciary and other institutions. There was no way Maraga under Moi could rule the way he did. Uganda’s Judiciary might only have breathing space with another president. And this is not just about Moi or Museveni - it is the case in Zimbabwe under Robert Mugabe, Burundi under Pierre Nkurunziza, Rwanda under Paul Kagame and Cameroon under Paul Biya, etc. These are states reeking with institutional capture by strongmen. Independence of the Judiciary is thrown out of the window. Even CJ Maraga would dare not rule against these strongmen. Judges watch their backs when writing judgments touching the heart of the presidency in strongmen-led states. In Kenya, Maraga knew he would go home safe after sending Uhuru out of State House. That is the beauty of independence. Africa, therefore, has to free itself from the claws of despots and modern-day poor versions of Adolf Hitler and Pol Pot to see the courts and other institutions function with sufficient leg-room. Kenya did so when it got rid of Moi and we can see that victory is paying off. The rest of Africa has to dislodge strongmen for more ground-breaking precedents to be set. For now, the scaremongering elite like Mr Mwenda should give us a break and let us toast to CJ Maraga, the Person of the Year. The future of Africa is bright!

Mr Okuda is a lawyer, journalist and Fellow with the Great Lakes Institute for Strategic Studies.