Decisions of international courts rarely to attract much attention in Kenya –particularly if the counytry is not actively involved. Yet last week, Kenyan newspapers carried headlines like “Africa Court on Human and People’s Rights says state at liberty to postpone polls”.
THE COURT AND WHAT IT SAID
The Court is a body of the African Union. It deals only with human rights cases, and usually only against states that have accepted the Charter on Human and People’s Rights.
But it can also “provide an opinion on any legal matter relating to the Charter or any other relevant human rights instruments” – and it did so in this case, at the request of the Pan-African Lawyers Union.
PALU wanted the court’s guidance on the questions of deciding whether to hold or postpone elections in a public health emergency, and of the obligations of the state if it decided to go ahead with elections, or if it decided to postpone them. P
PALU was concerned that holding elections during a pandemic, when there were restrictions particularly on movement and association with others, would make it hard for candidates and voters to exercise their full democratic rights. And also to have an accountable process, including through the use of election observers. On the other hand, postponing an election is itself an interference with democratic rights.
The court refers to what it is doing as “guidance” only.
It gives a very sensible analysis of the situation. It insists that if elections do go ahead on schedule despite a pandemic, when people’s rights are limited, those limits on rights must satisfy certain criteria. They must be contained in a law, they must be to achieve a legitimate purpose, must not be more than necessary to achieve that purpose, and must not be discriminatory.
If a decision is made to postpone, it must be based on consultation with the public and those particularly affected. And again rights must be respected and protected.
Perhaps what would most worry Kenyans who are keen that elections should be held as scheduled would be this statement of the court: “the postponement is legitimate if it aims at protecting the health and life of the people, as well as allowing the creation of conditions for the holding of transparent, free and fair elections.”
HOW DOES THIS APPLY TO KENYA?
The court was interpreting only international treaties: Two African treaties – the charter already mentioned, and the African Charter on Democracy, Elections and Governance - and the International Covenant on Civil and Political Rights. Never heard of the second?
Kenya signed it in 2008, but has never ratified it – which means it has never finally accepted it. (Uganda has signed but not ratified and Tanzania has never signed.)
It is not really clear why not. But late last year the Cabinet and then the relevant committee of Parliament recommended that it be ratified. Then it will become part of Kenyan law – including the statement that it is to be implemented in accordance with the principle of “Holding of regular, transparent, free and fair elections”.
Our Constitution now says any treaty Kenya has finally adopted is part of Kenyan law - but “under this Constitution”. The Supreme Court has said this means Kenyan courts must apply a treaty – so long as it does not conflict with the Constitution, any statute or any final binding court decision.
In my view, our Constitution leaves no space for any postponement of an election that is not specifically provided for in it. A deliberate decision was made to have a system of fixed parliaments. There is only one provision for postponing an election and that is in case we are at war. Not even, as some people have said, for some other crisis. And war means war – declared in accordance with the Constitution, and not war on the virus, or corruption or drugs.
The African Court said those who have the power to fix an election would also have the power to postpone it. But in our system the Constitution – not any person or body – fixes the elections.
NECESSITY
Am I really saying that there is absolutely no situation, other than war, in which an election might be postponed? No – one could imagine situations in which the courts might hold that it was essential, even inevitable.
If government tried to do it, clearly it would immediately be challenged in court. If government (or the IEBC, for example) wanted, they might be able to go straight to the Supreme Court for an advisory opinion. An application for an advisory opinion has to be brought by a state organ and has to concern counties. But the court has accepted that even national elections and the gender make-up of national bodies concern counties – in the case about the gender rule in 2012. But they can refuse the case, and insist on any case beginning in the High Court.
To repeat what I have said earlier on necessity, in one Kenyan case a judge said fighting Covid-19 justified declaring a local clinic as a centre for the virus patients without any public participation – using the doctrine of necessity.
The Supreme Court has held that necessity may justified a judge sitting even if otherwise he ought not – if the alternative is that the court cannot sit at all.
But in another case Justice Isaac Lenaola said, “It can never be true that necessity would make that which is unlawful, lawful if it violates or threatens the Constitution.”
This approach would make postponing the elections impossible, and perhaps would go too far. But Lenaola had a point: Going against the Constitution must surely need particularly strong necessity to justify it.
VALUE OF AFRICAN COURT DECISION FOR KENYA
I believe the African Court’s decision on whether a state could postpone an election cannot resolve any issue on that topic in Kenya.
Indeed the court itself says, “The court considers that it is for the domestic [national] law to define the conditions for postponing elections.”
On the other hand, its emphatic insistence that, either way, human rights must be respected and any limits must meet certain standards has some value.
In fact they might almost have been reading Article 24 of our Constitution when they set out the framework for permissible limits on any rights referred to earlier. And any measures restricting rights may not negate the essential content of the rights restricted (which is also what Article 24(2)(c) says).
Article 24(2)(a) also makes it clear that those who make law limiting rights must state clearly that they intend to limit the particular right in question. So they must address their minds to, for example, the implications for the political rights in Article 38. And there must be a statement in the law making it clear that limitation of these specific rights was intended. I would also suggest this means they must assess the actual situation close to the legal election date – not months in advance.
We should also remember that not only would the main reason used to justify postponement be the need to protect the health of the people, as the court says, but in our Constitution there is a separate, and legally enforceable, right to health.
Finally, the court notes that postponement of elections must be a last resort, “without which it will not be possible to protect the health and lives of the people and ensure the integrity of the electoral process”. But at the end of the day it is for this country to decide for this country, on the basis of Kenyan law.
The only thing that really worries me about this case is that it might operate to encourage those who want a delay in elections, and are in power, to avoid taking effective action against the virus – or perhaps to provide misleading information about the virus – in order to form the basis for postponement.
Can’t happen? Can we be so confident?
