Kenya’s Supreme Court Renders a Bad Ruling

George Ayittey

I respect Kenya’s Supreme Court but I beg to disagree with the Justices. They rendered a bad decision on Saturday. Here are 6 reasons why.

First, given the highly charged political atmosphere, they should have stayed above the fray, instead of inserting themselves into it by declaring or confirming Kenyatta or Odinga as the winner. Now they risk being seen as “compromised” or “partisan,” favoring one candidate over the other.

Second, the SC ordered a re-tally of votes from 22 polling stations out of a total of 33,400. The sample was too small. Admittedly, the Supreme Court had only 6 days to make a ruling and, further, CORD (the Odinga camp) may have suggested a scrutiny of those 22 polling stations. However, if that small sample revealed evidence of irregularities, logic suggests that the large remainder must also contain irregularities that must also be scrutinized. If a portion of the meat is spoilt, would you cut it off and eat the rest?

Third, the decision does not erase the widespread suspicion that there were nefarious attempts to manipulate the results and rig the election. It is a bit of a stretch to attribute the irregularities to “clerical” or “human error.” How does one explain:

1. The sudden break-down of IT or electronic transmission of results, necessitating manual tabulation?

2. The break-down of biometric equipment, necessitating voting without biometric verification?

3. The mysterious expansion of over 1 million voters in the electoral register for the presidential election but not for the parliamentary?

I am afraid, these suspicions will linger and no one knows what they will morph into.

Fourth, Kenya is dangerously polarized politically. Uhuru’s win of 50.07 of the vote is one the narrowest majority and the “minority” is nearly 50 percent of Kenyans who did not vote for him. That means nearly half of Kenyans are not going to like the Supreme Court decision and will still feel aggrieved. This is dangerous because, in Africa, it takes a small group of determined mal-contents to wreak havoc and mayhem -- let alone half of the electorate.

In 1985, the late General Samuel Doe held elections in Liberia. When it appeared that he was losing, he ordered the vote count halted. Ballot boxes were then transported to a secret location at the army barracks where the votes were tallied and Doe declared the winner. Charles Taylor refused to countenance this contumely and started a “bush war” with only 100 men. The rest is history. Similarly in Uganda, Yoweri Museveni started out with only 27 men.

Fifth, the Supreme Court decision does not ease but would rather exacerbate tension in the country. Kenya is also deeply polarized along tribal and religious lines. Gikuyus voted for Kenyatta, Kalenjin for Ruto and Luo for Odinga. Religion or tribal politics is a very dangerous proposition in any African country. In Kenya, there is a perception that the Gilkuyus have dominated both the political and economic scenes. Of Kenya’s three presidents since independence in 1963, two – Jomo Kenyatta and Mwai Kibaki -- have been Gikuyu; Daniel arap Moi is Kalenjin. Further, the Kenyatta family are the largest land owners in Kenya and among the richest in Africa.

In Nigeria, tribal politics led to the Biafran War (1967-70). The Igbo, through their own hard work and determination, had become very successful, dominating senior positions in government, educational institutions, etc. But it bred tribal resentment and persecution, which propelled the Igbo to secede. Over 3 million – mostly Igbos – died in the ensuing war. In Rwanda, tribal politics led to the 1994 genocide, in which 1 million Tutsis were slaughtered. In Ethiopia, tribal politics has stunted that country’s growth prospects. In Ivory Coast, it was the politics of religion. The country was split into the Muslim North and Christian South after the Nov 2010 elections. Similarly in Mali, where the Muslim Tuaregs have long chafed under Christian South domination and discrimination. In Kenya, the Mombasa Republican Council, a Muslim group, is demanding secession. They were responsible for a series of attacks on polling stations in the March 4 elections. Clearly, the Kenyan Supreme Court cannot claim to be unaware of these developments. Note: Nearly all the civil wars in post colonial Africa were started by politically marginalized or excluded groups.

Sixth, the Supreme Court’s decision – wittingly or not – pokes a finger in the eye of the ICC, which has indicted Kenyatta and Ruto for crimes against humanity. To be sure, the ICC indictment was not the issue being challenged at the Supreme Court but by confirming that Kenyatta and Ruto won the elections, the Supreme Court has indirectly passed judgment on the case. It is as if the Supreme Court is saying the ICC can take a hike. The Supreme Court will not cooperate in bring Kenyatta and Ruto to justice as it has certified them as winners of the March 4 elections. And, further, the ICC indictment does not disqualify Kenyatta to be president of Kenya when in fact the Supreme Court should have debarred the two from contesting the presidential elections until they cleared their names.

The ICC indictment puts Kenya in a diplomatic quandary if Kenyatta becomes president. He may be shunned diplomatically and risks arrest if he travels to Europe. It is unlikely President Obama will ever invite him to the White house or be seen with him.

At any rate, the SAFEST decision the Supreme Court could have rendered was to order the Electoral Commission to re-tally the votes in ALL polling stations since the sample of 22 polling stations showed some irregularities and if neither candidate secured 50 percent plus one, to schedule a run-off.

A run-off would mop up the stench of tribalism as it would force candidates to canvass for votes or court tribal groups other than their own. It would also put to rest the suspicion that the March 4 vote was manipulated or rigged. My preference would be a re-run of the entire elections because of the high number of rejected ballots. Voters were confused. This time, however, a new Electoral Commissioner should be employed. [The current one, Isaack Hassan, cannot be trusted.] The difference in cost of running a run-off and a complete re-run is likely to be same as it is the same electorate voting again. If a portion of the meat is spoilt, the entire meat should be thrown out.

Dr. George Ayittey,

CEO, Free Africa Foundation, Washington, D.C. April 01, 2013