Lessons in the annulment of the election in Kenya

In an unprecedented twist to the presidential elections in Kenya, that country’s Supreme Court annulled the entire results and ordered the country’s electoral authority to organize new elections within sixty days.

Because the judiciary is the weakest and unelected branch in the three conceptually co-equal branches of a democratic government, this overwhelming action by the Supreme Court of Kenya must be troubling to the objective observers of the continent’s inchoate democratic project.

For the decision of the Supreme Court of Kenya is not something which is usually contemplated by many African leaders. These leaders assume that on any ordinary day, the august Court will toe the executive line. After all, when Ghana began its self-government in 1957, it was the stock in trade of the first President, Mr. Kwame Nkrumah to have his wishes expressed by the Supreme Court: His laws allowing for the incarceration of his opponents, that banning free expression, that making him President for life, and that declaring the country one-party state were all endorsed by Ghana’s Supreme Court. And when the Court refused to convict those of Nkrumah’s own cronies of plotting to assassinate him at Kulungugu, the President simply dismissed the Chief Justice and reconstituted the Supreme Court which found those accused persons guilty and condemned them.

Elsewhere in Africa, and in Kenya and in Tanzania particularly, the leaders consistently followed Nkrumah’s ‘glowing’ example in arrant dictatorship and instituted akin laws that enabled the President to hold untrammeled power over the supreme courts, dismissing their chief justices willy-nilly and vesting sovereignty in their sanctimonious persons. In the end, the Supreme Court in many African countries became “lame-dog” institutions that only followed their masters’ incessant dog-whistling.

Given this background, the absolute confidence displayed by the Supreme Court of Kenya in annulling that country’s presidential election results in which the sitting President was declared the winner, ought to signal a dramatic shift in the Court’s view of itself, and in its new-found understanding of the boundaries of its unquestioning power and authority within the democratic dispensation. And that ought to be refreshing news for the aficionados of democracy here in Africa.

Unfortunately, this represents a slippery slope, for overturning a whole election is no wholesome manner in which a Court should exercise its inherent power. There is too much at risk when the decision presumably made by the people in whom sovereignty is vested is upended by some seven or nine unelected officials meeting in a dimly-lit chamber to decide upon a petition. And there is no difference between the question of whether an individual is improperly elected; or whether a group of legal lords annul elections: In both cases, the people have not made a choice of their leaders. And that is essentially a compelling reason why there are almost no instances where a court annulled any presidential election anywhere in the world.

Thus, in many countries, the court has simply upheld elections results once declared by their electoral authorities. This same posture undergirds the stand of many electoral observers: Whenever these observers go into any country to observe elections, their conclusions predictably follow this same linguistic format: That the elections were free and fair, and that even if there were irregularities, they were not enough to override the final outcome.

So together, both the judiciary and the international observers fuel the perception that once the election results are declared by the electoral authorities, it will nonetheless stand notwithstanding the public outcry against the outcome. This posture has also emboldened some individuals to go the full length to rig elections by any means possible. But there cannot be elected officials if the results of an election do not reflect the sovereign will of the people. If the people voting have not elected a government by the requisite majority of votes, the government is NOT ELECTED no matter what any electoral body or group of observers says.

That is why a determination as to whether the people have made a valid choice in an election is the nexus plexus of any electoral body anywhere. To this extent, all resources ought to be invested to ensure the proper ends of all elections: That the true choice made by the people at the polling stations is upheld by the electoral authority vested with the power to oversee an election. That is what Justice Atuguba inferred when he succinctly stated that elections are won or lost at the polling stations. In that sweeping albeit lucid statement is embodied the essence of all elections: That they are lost or won at the polling stations! Period.

Luckily, the 2016 elections in Ghana demonstrated the truism in this assertion. When the NPP committed its resources to manning the various polling stations, gargantuan numbers usually credited to the NDC suddenly disappeared from the election data, and pundits were left speculating exactly what happened. What they failed to acknowledge was that these people to whom these numbers were formerly ascribed never existed in the first place.

But it should not be the work of the political parties in interest to supervise what occurs at the polling stations. That is at the core of the mandate of the electoral authority itself. It is the electoral authority that must ensure that genuine results are declared at the polling station and are properly tabulated and transmitted to their central offices. If this requires live cameras installed at every polling station throughout the country, so be it.

And talking about cameras at polling stations, they are pretty effective in capturing what occurred for any latter-day legal review. To confirm this, there was a WhatsApp meme that widely circulated in the days leading up to the declaration of the electoral results in Kenya. That video showed a polling personnel patently mis/counting the polls as follows: 97, 98, 99, 300, 301……”. So all of a sudden, five valid votes transmogrified into one hundred votes during that spurious counting!

Undoubtedly, this was the type of occurrence that compelled the Supreme Court of Kenya to invalidate the results. But if we are vigilant at the polling station and institute fool-proof methods in the declaration and tabulation of the results, nobody can raise any objections, and our country’s democracy will endure forever.

And that is why it is in the collective interest of the Electoral Commission, the political parties in interest, the citizens of the country and all other entities to ensure that when the counting occurs in the polling stations after elections, those numbers reflect the unadulterated wishes and choices of the people. That way, the sovereignty of the people will not be supplanted by the courts, and the law lords will no longer intervene in what ought to be a very simple exercise to determine who lead our dear country.

Samuel Adjei Sarfo, J.D., is a general legal practitioner in Austin, Texas, USA. You can email him at [email protected]