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The Supreme Court ruling that almost tilted the public opinion

Many African rulers in the post tyranny regimes prefer their own interpretation and understanding of “democracy”. The traditional definition of demos and Cracy, has become demo Crazy. As Zimbabwe cannot still imagine a nation without Robert Mugabe, Rwanda cannot imagine Rwanda without Paul Kagame. Uganda cannot imagine Uganda without Yoweri Kaguta Museveni just as Cameroon cannot imagine the nation without Paul Biya. By extension, Sudan without Omar Al-Bashir is beyond any imagination. The few that have succeeded in their struggle to pursue democracy, constitutionalism, and the rule of law are few, namely, the People’s Republic of Tanzania, Senegal, Zambia, South Africa, Ghana and may be, the Federal Republic of Nigeria. The majority of African nations are still wobbling in their search for the meaning of democracy.

Prominent question that comes into the mind of any human is, should Africans find it so difficult to understand and embrace democracy? The Republic of Kenya, in the recent ruling of the Supreme Court could not imagine a ruling nullifying the election of the President. This was not only unfamiliar terrain for so many politicians but also an offense to the sitting president who never thought that justice may not be on his side even if the law might be on his side. After a well debated petition of flawed transmission process of electoral results, president Uhuru postured calling judges thugs in the social media.

This is a sign that many Kenyans still cannot imagine a sitting president losing a court case. The presiding Chief Justice Hon. David Kenani Maraga stood bold to pronounce a very difficult ruling. He said and I quote, “a great nation is known for its fidelity in the constitution, the rule of law and most importantly, the fear of God”. The fidelity in the constitution and the rule of law sounded as obvious pronouncement of any objective judge on earth, but when he added the word God, many mediocre thinkers thought that he should have not projected God in the administration of justice.

I do prove the Chief Justice and the president of the judiciary right! Justice cannot be based only on the law and the rule of evidence. Justice actually embraces even the area of belief, culture, traditions, values and principles that are beyond the coverage of law. I do respect the dissenting opinion of Hon. Njoki Ndung’u and Hon. Prof. J.B. Ojwang’ both of whom did not agree with the majority ruling. They both believed that the petition was weak and did not have any iota of merit for nullification. This is the greatest problem of accepting that a presidential election can be rendered null and void in Africa. With such traditional belief that a sitting president is like a small god or above the law, the dissenting judges had all courage to express their shock when the other 4 judges ruled in favour of the petitioner and rendered the elections null and void due to irregularities and illegalities committed by the 1st respondent.

Some politicians from the respondent argued that if governors were elected and sworn in, Senators were elected and sworn in, Members of the National Assembly were elected and sworn in, the MCAs were elected and sworn in by the same IEBC and the judiciary sent judges to swear them, how comes only the presidential election was to be nullified. The president saw this as ridiculous and prejudice to justice when he said, “we are not fools” and only 6 or 4 people cannot change the will of 42 million people.

One thing, it was not the 42 million people who participated in the elections. Another issue is, the Supreme Court has constitutional power, or the power of the 42 million Kenyans to adjudicate presidential disputes. Remember that in 2013 a similar case was handled by the same Supreme Court and it emerged that the elected president and the IEBC were absolved of no wrong doing. The petitioner did did not agree with the ruling but accepted the outcome without threatening the judges or calling them names. This time the Jubilee party called judges thugs and threatened to deal with them after 60 days. The nation was shocked by such statements.

The take on this whole scenario is a sign that many African independent states are still missing the meaning of democracy. In the adversarial judicial regimes, the court shall never take initiative unless one goes to seek justice. No loser in the guvernatorial election has ever moved to court to seek redress. Not even any of the electoral positions and it is not wise to use them as examples. The judicial system does not work like that. Every case is dealt with distinctively from other imagined cases. Unless somebody petitions the court, no court under common law traditions can take its own initiative to order investigations as it is known in the inquisitorial regimes. To make matters worse is to insult the judiciary and subject justice to public ridicule by one who is expected to uphold the rule of law and constitutionalism.

The Supreme Court litigation was publicly displayed and many people followed how the petitioner and the respondents argued their cases. The international community and the African Union members urged the parties to accept the outcome of the court ruling. It is normal to disagree but it is abnormal to hurl abusive and demeaning words against the judges for having decided against you. This is a sign of impunity, tyranny and status quo that many African democracies are suffering from.

Intolerance and arrogance from the political elite still must be properly addressed in order to deal with political impunity and electoral malpractices. The continent must still work on the use of state power to frustrate the wheel of justice. The judiciary and judges appointed in democratic ways must defend only justice. Each judge must be committed to integrity of the justice system despite all the threats and humiliation. A strong nation is seen in its adherence to the law, the constitution, and fear of God.

If Kenya poses as a good example for other jurisdictions, then the starting point is pegged on the respect of the state organs by leaders. The Executive must respect the Judiciary and give regard to its primary role of interpreting the law. The Legislature must as well play its part in showing some independence and service to the people it represents while making, amending and unmaking the law. Until the state organs shall do the right thing, there is no way African states shall claim political maturity.


About Peter Onyango

Dr. Peter Onyango O. is one of our main contributors. He is a senior law lecturer, a writer, a consultant, peace ambassador, and a researcher. He assists so many professionals, legal minds, and debaters with his skills and scholarly wealth! He supports children and village community as a way of giving back to community. He edits, proof reads, and publishes various articles for our page!

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