Dr Ebenezer Laryea, Lecturer in Law writes:
A Powder Keg of Uncertainty
The well acclaimed Indian politician and economist, Jairam Ramesh, once remarked; “there never is never a good time for tough decisions. There will always be an election or something else which requires steely thought. Governance is about taking tough, even unpopular, decisions.” This is exactly what seems to have transpired in Kenya where its Supreme Court has ruled, in a truly historic decision, to nullify and declare void the results of a presidential election which international observers had certified as being free and fair.
The potential repercussions and consequential effects of this decision will appear colossal to anyone who has been following the tense drama of Kenyan politics over the last decade. For many in Africa and around the world, the scenes of chaos and carnage in Kenyan towns and cities in the days and months following the 2007 presidential vote are still vivid. In a country whose politics is so deeply entrenched in tribe and ethnicity, the depth of the divisions which could very well ignite the spark of rampant violence ought not to be underestimated – and one can find therefore, a strong basis for reaching the logical conclusion that the best possible chance to avoid a descent into violence in such a politically and ethnically charged environment, would be to have the exercising of the democratic choice concluded at its quickest pace.
By ruling that the electoral board committed “irregularities and illegalities”, the Supreme Court of Kenya has entered the country into a period of grave uncertainty. The 60 days that remain before the holding of the fresh elections which have been ordered will probably be the tensest Kenyans have experienced in recent memory. Businesses are already experiencing negative consumer attitudes amid fears of fresh protests and investment is already beginning to stall. Kenyan shares took a huge tumble when the decision was announced, prompting the authorities to suspend trading at the financial market in Nairobi.
As these unintended consequences of the court ruling persist and strengthen over the coming days, many will be asking about the role the international observers played in the course of this election, and how it came to be that their assessment and judgement of the election process is so far removed from that of the Kenyan Supreme Court.
Whiles the opposition party cried foul amid increased protests in the days following the August 8th vote, the international observers who had been doing the work of monitoring the electoral process were sounding a very different note. They offered an assessment of the electoral process which guaranteed that the integrity of the electoral process remained undamaged and was not undermined even in the least.
Former US Secretary of State under the Obama administration, John Kerry, who led the Carter Centre’s observer mission, confidently stated that ‘Kenya had made a remarkable statement to Africa and the world about its democracy, and the character of that democracy, by holding a free and fair vote which was devoid of irregularity.
Ghana’s own former President John Mahama, who led the Commonwealth observer mission, similarly endorsed the integrity of the electoral process saying that Kenya’s voting and counting system appeared credible, transparent and inclusive, and that Kenya had the potential to be the most inspiring democracy in Africa.
It is worth pointing out at this point that both Kerry and Mahama command quite significant amounts of respect within the international community and on the world stage. Kerry is an extremely experienced politician and statesman who has offered diligent and valiant service to his country as a service man in Vietnam, a United States Senator, a Lieutenant Governor of his home state of Massachusetts, a candidate for the office of President of the United States, and the 68th Secretary of State of the United States.
Similarly, John Mahama is well respected in Africa and throughout the world as an experienced politician and a consummate statement. He offered service to Ghana as a member of the Ghanaian parliament for many years, then went on to serve as a government minister in charge of communications – he ascended to the Vice Presidency following that, and ultimately served as President of the Republic of Ghana. Mahama is arguably the most qualified person yet to service in the Office of the Presidency of the Republic of Ghana – and he recently received world-wide acclaim when he conceded to a narrow defeat in Ghana’s most recent election; the first such act of any incumbent President in Ghana’s entire history.
Given the solidity regarding the calibre of these men and the observer missions they led – and given the respect they command in the eyes of all good men and women across the world, it is, I think, logical to completely rule out, as is now being suggested by many, the argument of their participation in a conspiracy to influence the outcome of the Kenyan election, absent the existence of verifiable and irrefutable evidence which supports that claim.
Before we begin cementing our conclusions on the role and effectiveness of international observers following the Supreme Court ruling, its important take into account the fact that international observers judge the fairness of an electoral process exactly as they see them; in its raw state as events unfold in front of them. Arguably therefore, there is every likelihood that they may very well not be aware of nefarious acts or omissions which may have gone on behind the scenes – which seems to be what has happened in this specific case regarding Kenya.
The Kenyan Independent Electoral and Boundaries Commission (IEBC) employed the use of a range of electronic systems in the election to further strengthen the integrity of the voting, counting and declaration processes. Ironically, it is the same use of this system which ended up being a source of contention, and ultimately, the nullifying of the vote amid allegations of hacks and tampering.
On the 30th of July, the Kerry led Carter Centre observation mission, urged the IEBC to conduct thorough and additional tests to guarantee the solidity and impermeability of its electronic systems to hacking and fraud before the August 8th elections. The Kerry led mission further warned that the success of the polls would largely depend on the proper functioning of the electronic systems.
It is thus, in my view, demonstrable to argue therefore, that the observer missions in this case behaved as any ordinary observer mission would behave. They observed the election as it appeared to them, and pre-warned Kenyan officials about unresolved issues which could potentially impact the integrity of the vote. Given that the primary problem in this case was the issue of hacking, and given that the responsibility for securing the integrity of those systems against hacking was squarely within the hands of the Kenyan authorities themselves and not the international observers, it seems in my mind ill-founded to suggest that the Supreme Court’s ruling questions or undermines the role or integrity of the international observers.
Furthermore, let it not be forgotten that the Kenyan Supreme Court is the highest court in Kenya, and that it derives its authority from the Kenyan constitution, which is the superseding law in Kenya. Accordingly, the occasion of the Supreme Court nullifying a vote on the grounds of irregularity and legality is nothing more than an exercise and exhibition of the robustness of the Kenyan constitution and the strength of a Kenya committed to the rule of law. It would be therefore erroneous to characterise the court’s ruling as mainly being a rebuke of the international observer missions.
The work of international observers is vital to ensuring free and fair elections – especially in Africa where the tree of democracy is yet to grow deepened roots – and Kenya is going to need the observers now more than ever before. At a time when it is extremely vital for the future of Kenya that it has a credible set of observer missions keeping an eye on the election, it does very little good for the cause of peace in Kenya to question the integrity of those same observer missions without demonstrable evidence.
The fact of the matter is that Kenya is going to need international observers in the coming election – Kenya is going to need for the word and assessment of those observer missions to be above question – the undermining, therefore, of the credibility of those observers, by numerous claims of bias and partiality does nothing to sustain peace and the continuity of government in that country.
Yes, it is indeed the case that the Supreme Court’s decision was completely at odds with the assessment offered by the observer missions. However, it must be nevertheless regarded that it is well within the rights of an authoritative court to offer an assessment different to that of un-authoritative observer missions – and it must similarly be regarded also, that the exercising of this right says nothing about the role, integrity or credibility of those missions. Rather, the exercising of this right speaks to Kenya’s coming of age as a nation which respects the rule of law, constitutional government, the separation of powers, and the principle of co-equal branches of government.
It remains to be seen whether Kenya’s commitment to democracy is strong enough to take it peacefully beyond the impending election cycle and whether it is able to withstand the powder keg of pressure and tension which have now come to be as a result of the Supreme Court’s ruling.
It also remains to be seen whether Kenya’s democratic institutions are robust enough to absorb the shocks of the court’s ruling and deal with the tense forces that have now been unleashed following the court’s ruling.
Many people may fear for Kenya at the moment– but if the Kenyan people and their leaders are able to turn their focus towards the things that unite them rather than the things that divide them, then I see no reason why those of us who are hopeful for a peaceful and prosperous Kenya should be disappointed.