Supreme Court of Kenya must not abet unconstitutional change of government

Kenya’s 2010 constitution has been variously hailed as progressive, liberal and one of the most modern in the world. An expansive bill of rights, a circumscribed executive and an ethos for participatory development as represented by devolution of power to 47 counties constitute its important hallmarks.

Despite its highly liberal formulation, this constitution has rarely been described as revolutionary or disruptive. In sum, it creates norms and institutions for orderly governance and stable social relations.

A complex system of checks and balances ensures that no single institution can usurp public authority in a manner that erodes the foundational premise of the constitution to create an open and democratic society.

However, this constitutional order appears besieged.Seven years after its enactment, our constitution is facing its greatest challenge yet in the context of mediating the 2017 Presidential Election.

Since pronouncing its abridged declaration invalidating the election of President Kenyatta on 1 September 2107, the Supreme Court of Kenya (SCoK) has opened an unexpected constitutional chasm which unless it helps remedy in its reasoned judgement expected in a few days, could thrust the country into a constitutional crisis.

Although the constitution itself contemplates that a presidential election dispute presented before the Supreme Court could result in an annulment of an election, the constitution is nevertheless clear that such a situation must be followed by a fresh election within 60 days of invalidation.

The reason for the emerging uncertainty in our context is that in nullifying the presidential election, the SCoK impugned the conduct of the Independent Boundaries and Electoral Commission (IEBC), the electoral management body, which it found to have “failed, neglected or refused to conduct the Presidential Election in a manner consistent with the dictates of the Constitution” and to have “committed irregularities and illegalities inter alia, in the transmission of results…”

The effect of holding IEBC culpable for failed elections is to impair its capability to hold fresh elections contemplated in article 140(3) of the constitution within the requisite period of 60 days. Already, SCoK’s declaration has provided a veritable set of incentives to a coterie of actors to demand far reaching changes to the election management process.

For instance, the opposition, NASA, has called for dismissal of key officials of IEBC, contracting of a new printer of ballot papers, and most crucially, access to most security features of the election transmission technological interface. These demands, if they were to be complied with, will have at least two discernible effects. First, is that IEBC’s capacity to deliver an election within the 60 days as expected by the constitution will be highly doubtful because the removal of personnel with expertise and institutional memory of this electoral process will weaken the Commission, rendering it unable to achieve set targets. Secondly, access to IEBC’s election transmission security protocols will render the Commission’s data highly vulnerable making real the allegations of hacking, and increasing chances of the fresh elections being found not to satisfy the required thresholds of being free and fair.

Meanwhile, NASA has predicated its participation in the fresh elections in the full compliance with its demands, it has been categorical that it will ensure that no election is conducted on 17th or at all unless its demands are met.

In my view, the only means that NASA can enforce its threat that no elections are conducted within the 60 days is by fomenting an uprising to disrupt the on-going preparations of elections by the IEBC (no proper court will order an extension as period is constitutionally delimited). Consequently, NASA hopes to foist itself into power by means other than those contemplated by the constitution. This revolutionary result from the SCoK ruling, while unintended, is nothing but an unconstitutional change of government.

It must be remembered that the resurgence of coups in Africa prompted the African Union to formulate norms on unconstitutional changes of government. According to these norms, any change which is an infringement on the principle of democratic change of government or is inconsistent with the constitution is prima facie an unconstitutional change of government and is impermissible under international law. The principle of democratic governance is further sanctified in AU’s Charter on Democracy, Elections and Governance which enjoins state parties to uphold democratic tenets including regular free and fair elections, ensure government based upon consent of the governed, and facilitate constitutional transfer of power.

Although judicial coups were never in the contemplation of the drafters of these continental norms, SCoK must ensure that it does not become the handmaiden by which unconstitutional change of government, with its attendant instability, chaos and violence, is perpetrated in the country. To achieve this, SCoK’s must provide an iron clad reasoned judgment that will curtail any attempts at subverting the constitutional requirement that a fresh election must ensue within 60 days of the annulment of a first election. Failure on its part will cast it as an agent of those intent on reversing the advances made in our democratic journey so far, and will invite upon itself global reprobation and history’s severe judgement.

<strong>Dr Korir Sing’Oei (is an Advocate of the High Court of Kenya and a Legal Advisor, Executive office of the Deputy President)

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