Friday, Feb 27th 2015


Saturday, March 23, 2013 - 00:00 -- BY EDWIN MULOCHI

Shortly after the amendment of the contentious section 2A of the Kenya constitution to introduce multi-party democracy, Kenyans went to polls in 1992.

Retired President Moi's party, Kanu and the then opposition leader Kenneth Matiba's Ford Asili were the front runners in the 1992 general election.

At the end of the vote, the Electoral Commission of Kenya declared Moi the winner and Matiba the runner up. Matiba then moved to court to contest the results. He alleged massive rigging by Kanu and sought the court's help in reversing the results. But even before the court's ruling, Moi was swiftly sworn in and assumed the reigns of office. Matiba's prayer for reversal of the results was turned down by the court and his petition dismissed. Justice Riaga Omollo dimissed Matiba's petition on grounds that he had not signed it in person. That notwithstanding, many Kenyans believed that Matiba had indeed beaten Moi in the 1992 polls. This feeling still lingers on to date.

Then came the 1997 general election. Moi was still in the race. His closest challenger, Democratic Party leader Mwai Kibaki, lost to Moi amidst claims of rigging. Like Matiba, Kibaki petitioned the court to declare the election a fraud and call for a repeat of the polls. Moi was again sworn in before the court's verdict. Kibaki's petition was again dismissed by the court.

The fate suffered by Matiba and Kibaki in court did not strike many Kenyans as strange. The levels of compromise in the judiciary were so high that no one expected it to rule in favour of the opposition. With many of the judges and even lower judicial officers being handpicked by Moi and his cronies it was almost guaranteed that when it came to matters to do with the presidency, Moi would always have the last laugh. The Judiciary was regarded as an extension of the executive. Judicial officers could only rule against Moi and his cronies to their own detriment. The phrase, "Why hire a lawyer when you can buy a judge" became the defining mark of the Kenyan Judiciary. Judicial officers saw no fault in being errand boys and girls of the powers that be. Justice was only available to the highest bidder.

Many political analysts opined that it was naïve for Matiba and Kibaki to expect justice from such a compromised judiciary. Indeed even ordinary Kenyans had no serious expectation that these petitions would succeed. Life went on as if there were indeed no petitions before the High Court, and when the decision in favour of the president was rendered, not much notice was taken of this, outside of legal and hard-core political circles.

Kenyans went to the polls again in 2002, and a great majority of voters rallied behind the then opposition leader Mwai Kibaki and the National Rainbow Coalition. With support from almost every corner of the country, Kibaki handed Moi and his chosen successor Uhuru Kenyatta the defeat of their lifetime. So huge was the margin of Kibaki's victory that Uhuru Kenyatta swiftly conceded defeat. This time round no one moved to court to contest the overwhelming victory.

The claims of rigging returned to haunt Kenyans again following the contested 2007 general election. The Samuel Kivuitu-led Electoral Commission of Kenya declared President Kibaki the winner in a race pitting him against Orange Democratic Movement's Raila Odinga. The announcement of Kibaki as the winner rubbed millions of Kenyans the wrong way. No sooner had the results been announced than the country erupted in violence with Raila's supporters alleging that his victory had been stolen. The scale of violence spiraled out of control, and the international community had to intervene to restore peace to the country. More than 1,000 lives were lost and 600,000 people were displaced.

When members of Kibaki's inner circle challenged Raila and his party to contest Kibaki's 'victory' in court, Raila flatly refused. He argued that it was an exercise in futility to go to courts stuffed with Kibaki's cronies. Raila's sentiments echoed the belief of many Kenyans that expecting justice from the judiciary was akin to expecting water from a rock. Normalcy was only restored when the international community through former UN secretary general Kofi Annan and his panel of Eminent Africans brokered a truce between Raila and Kibaki. The truce saw Kibaki retain the presidency with Raila becoming the country's Prime Minister.

Much water has gone under the bridge since the disputed 2007 general election. On March 4, 2013, Kenyans took part in a general election under the new constitution promulgated in 2010. The March 4 election was peculiar in the sense that unlike in previous elections when Kenyans elected only three public officials, this time round they were electing a record six public officials. It is also the election that has seen the inauguration of a bicameral Parliament consisting of the National Assembly and the Senate.

The two key contenders in this election were the Coalition for Reforms and Democracy candidate Raila Odinga and Jubilee coalition's candidate Uhuru Kenyatta. After waiting for five days, the Independent Electoral and Boundaries Commission declared Uhuru Kenyatta as the President-elect.

Pursuant to this declaration, Raila has lodged a petition in the Supreme Court under Article 140 of the constitution to dispute Uhuru's victory. In his petition, Raila is contending that despite being funded by taxpayers to the tune of billions of shillings, the IEBC equipment totally failed to transmit the results electronically to the national tallying centre at the Bomas of Kenya forcing the electoral body to resort to manual tallying. He is also alleging that in some areas, the number of registered voters was much lower than the number of votes announced by the IEBC. Raila has even gone ahead and alleged at a public rally, that he won the election by 5.7 million votes but it was rigged in favour of Uhuru.

It is of course with just such scenarios in mind, that the Supreme Court was created in the first place, under the new constitution. There was a clear understanding among the committee of experts who met to harmonise and polish up the draft constitution, that Kenya needed one final level of the judiciary, which the nation could turn to in times of  such an impasse. And that it was necessary that the Supreme Court should consist of judges who had undergone a public vetting, so that it would be impossible to argue that it was partisan in any decisions it made.

Both Raila and Uhuru have publicly stated that they will abide by the decision made by the Supreme Court whichever way it goes.

All the same, the petition before the Supreme Court has raised levels of tension in the country. There's a lot of uncertainty as to which verdict will be ultimately arrived at by the highest court in the land. While Uhuru's supporters are optimistic that the court will throw out the petition and confirm their man as the country's fourth president, Raila's followers are hoping that the court will declare the election fraudulent and order a repeat. Whichever way the court rules, there will be significant ramifications that Kenyans will have to contend with.

If the court rules that the election was free, fair and transparent, Uhuru Kenyatta will be sworn in as Kenya's fourth president. This will be a slap in the face of Raila's supporters since the decision of the Supreme Court is final and cannot be overruled. Raila will then have to wait for another five years before trying his luck again. Under Article 140(2) the Supreme Court has 14 days within which to make a ruling on Raila's petition.

Conversely, if the Supreme Court finds the whole electoral process wanting, on the strength of the evidence adduced by Cord, it will most likely nullify the results. Article 140(3) stipulates that, "If the Supreme Court determines the election of the president elect to be invalid, a fresh election shall be held  within sixty days after the determination". This Article contemplates a situation where all the eight presidential candidates may have a chance to take part in a fresh general election. Nothing, however, stops the Supreme Court from ordering a repeat of elections between the two main contenders, Uhuru Kenyatta and Raila Odinga. In all likelihood, this will be the case in the event of the court declaring the polls a fraud given that nearly all the other six candidates have conceded defeat and may not be interested in having their names on the ballot again. Furthermore an election involving two candidates will be somewhat easier to manage bearing in mind the logistical complications involved in an election with eight aspirants.

What is unfolding in Kenya is not different from the situation currently obtaining in Ghana. In December 2012 Ghanaians voted in a general election. Incumbent President John Mahama was declared the winner with 50.7 per cent of votes enough to avoid a run-off against opposition leader Nana Akufo-Addo who garnered 47.7 per cent. Akufo-Addo has since filed a petition in the country's Supreme Court with evidence that the electoral body manipulated the voting system to hand Mahama victory.

  In the meantime what is worthy of note is that unlike in 2007 when he said no to going to court, Prime Minister Raila Odinga has, this time round, had no qualms in contesting Uhuru's victory in the Supreme Court. One may as well ask what has happened between 2007 and now that has brought about a change in the attitude of the PM and Kenyans at large towards the Judiciary.

The answer lies in reforms. Following the passing of the 2010 constitution, radical reforms have taken place in the Judiciary. New judges have been appointed and those that were serving on the bench before the promulgation of the constitution have been vetted. Those whose integrity was in question have been declared unfit to continue serving. Terms and conditions of judicial officers have also been improved making is difficult for them to be compromised.

Under the stewardship of Chief Justice Dr Willy Mutunga so much confidence has been restored in the Judiciary.  As if to demonstrate the independence of the Judiciary, Kenyans have watched with admiration and a sense of immense national pride as judges reverse some decisions made by the executive and even the President. This is something that could not be thought of just five years ago when judges served at the mercy of the executive.

It is courtesy of this reformed Judiciary that Raila believes that he will get justice. The good news is that he has promised to accept the verdict of the the Supreme Court. It may, however, be argued that his promise is superfluous since he will have no option but to abide by the decision of the highest court in the land.