The Kenyan Supreme Court has overturned the election of the Kenyan president and ordered another election within 60 days.
The general basis of the ruling was not that there was malfeasance and rigging but a sufficient breach of form and protocol. This was a brave ruling given the grounds it based it historical decision.
The lawyers for the Elections Monitoring Board appeared in their submissions to have accepted that there may have been slight breaches or non compliance with some protocols and procedures. The precise breached protocol and procedures for this article not particularly relevant.
Nevertheless, it was a massively brave decision given the political atmosphere and violence in the last disputed election. The international election observers and the EMB had delivered their judgement on the elections as largely free and fair. They may have based their judgement on the preconceived notion that elections in Kenya are such that form is not relevant but content.
If the elections are generally free and fair, take it. However, the protocols and procedures are put in place to achieve such an outcome. And you must comply otherwise there is no common acceptable grounds for conducting and accepting the results of the elections.
This is a step in the right direction. We must be in the business of the rule of law and the law is both content and form. We must not accept short cuts to how we conduct our business.
This judiciary is brave and showed it’s independence. That’s the point here.
In 1979, in the case of Awolowo vs Shagari, the Nigerian Supreme Court failed in this light to interpret the law without fear and favour. That court held that the requirement to obtain majority of the votes in 12 2/3 of the 19 states was achieved in favour of Shagari. The case against that judgement was there was no concept of a 2/3 state as each state was an indivisible electoral unit. Therefore 12 2/3 of 19 was 13 and therefore no winner of the 1979 elections. The Supreme Court bulked at such a notion.
No other Supreme Court in the continent has ever annulled an election of the status quo. So when Odinga suggest that this was a jurisdictional development for Africa, he may be right.
However, the proof in the pudding must be that all parties accept this judgment as both Keyantta and Odinga have done.
Elections when held in compliance with content and form, the contestants must be democratic in accepting such expression of the choice of their people both in elections and in law.
We must all be in the rule of law business and therein the route to development for African countries.