By
Arthur Agwuncha Nwankwo
The recent nullification by the Kenyan Supreme Court of the
August 8, 2017 presidential election in Kenya has stolen the headlines in
both local and international media and has dominated conversations among so
many people and groups. While the courage and boldness of the Kenyan Supreme
Court is emulative and instructive, one impression that the international media
has tried to create is that this is not in the character of African politics-
for the judiciary to affect the political process in the manner the Kenyan
Supreme Court has done. I agree that this is the first time in Africa where the judiciary has stuck to its convictions
and fended off executive pressure and blackmail to deliver what has
reverberated across the globe as a historic feat.
In real terms, it is in the character of Africans to expose
and distance themselves from evil and deceit. This character of justice and
equity is woven into the African psyche and consciousness but was significantly
eroded at the behest of alien values imposed on the continent by colonial
experience; an experience that has elevated the warped and otiose idea of
“political correctness” far and above moral conscience, truth, justice and
equity. I am, indeed, overjoyed that in my life time, Kenya, through its
Supreme Court has given me hope that African values of truth are still alive;
it has pointed the way forward for other African countries; it has shown that
our old values of speaking the truth at all times without really caring whose
ox is gored can be reinvented; and that being politically correct at the
expense of truth and justice is the perfect recipe for the death of nations.
If democracy is denominated by majoritarian rule, then it
would be wrong to conclude that it is alien to Africa
as many Western scholars and analysts are wont to assume. Without sounding
immodest, I am confident in asserting that democracy is native to Africa. We had our democratic ethos embodied in the
village assembly and collective decision-making process. What is rather alien
is the imposition of a new set of democratic parameters designed and defined by
Western standards. It is this Western understanding of democracy and its
allures of power that has made the democratic process in Africa
“short, brutish and nasty”. It is this Western value system that has produced
African dictators, sit-tight leaders and distortion of electoral processes. No
matter how anyone tries to explain away the disarticulating influence of
colonialism in Africa, the truth remains that Western Europe and the USA have
foisted on African states a pattern of leadership succession that brews hatred
and violence.
This pattern was played out in Kenya in 2007, when a bitterly
disputed presidential election sparked off massive protest resulting in the
death of thousands of people and leaving over 600,000 internally displaced
persons in Kenya. The world was alarmed at the intensity with which various
ethnic groups in Kenya
aggressed each other and the consequent level of destruction of lives and
property. Detailed study of the causes of that bitter disputation in Kenya revealed that Kenya’s political structure was
fundamentally flawed especially the constitution. Former UN Secretary General,
Kofi Annan, would eventually lead a process that recalibrated the political
structure of Kenya and in
the end handed Kenya
a brand new constitution that stipulated boundaries of group and institutional
powers.
It is commendable that this time around the political
gladiators in Kenya
chose to pursue their grievances lawfully without unnecessarily inciting their
supporters to violence. In terms of leadership succession in Africa,
the continent is famous for abusing the process of election; with various
political leaders manipulating the electoral process with the aim of
perpetuating themselves in power even when they have outlived their relevance.
Until his death, Nelson Mandela remained the only African leader to have
relinquished power willingly without attempting to perpetuate himself in power
even when he was pressured to do so. Apart from former Presidents Jonathan of
Nigeria and Nana of Ghana, I cannot remember any other African president that
accepted the result of elections when it is not in his favour.
The Electoral Commissions are usually structured in such a
way that it would return the incumbent to power irrespective of how the
electorate voted. This appears to be the pattern, not just in Kenya but also
in most African states. In Nigeria,
it is even worse. This tendency has given rise to disturbing dimensions of
voter apathy in many polities in Africa. Just
like the Independent National Electoral Commission (INEC) in Nigeria is filled with career politicians in the
guise of civil servants, so also is the Independent Electoral and Boundaries
Commission (IEBC) in Kenya.
Officials in such Commissions have, at the altar of political expediency,
denied the judgment of the electorate in favour of their paymasters. They
invent all manner of tactics to deliver their principals and in the end they
make a mockery of the electoral process. Little wonder the Kenyan Supreme Court
condemned IEBC for conducting the August 8 presidential election in a manner
that was not consistent with the law and in the process committed huge
irregularities and illegalities.
Even when these irregularities and illegalities were so
glaring, it is disturbing why so-called international poll observers endorsed
the outcome of the process. And this brings me to the vexed issue of allowing
such endorsements to be the yardstick for grading any electoral process
particularly in Africa. Why did the
international poll observers not see what the Kenyan Supreme Court saw? Did
these observers actually observed the poll or were they in Kenya merely to
give a stamp of approval to the illegality and irregularities of the IEBC? Did
they not know that election could be peaceful yet fraught with gross
manipulations? What informed their conclusions on the acceptability of the
election results?
It is interesting to see how the Kenyan Supreme Court has
exposed the falsity of such conclusions. I give all the kudos to the Kenyan
judiciary because it has given hope for institutional independence in Africa. I am happy because the decision of the Court will
bear strongly, not just in east Africa but in the entire continent; especially
in relation to the important role of the judiciary in the consolidation of
democracy in Africa.
What this judgment portends is that there is need for, not
just operational, but also political separation of powers from the executive as
a basis of both judicial and legislative independence. In order to achieve this
type of functional separation of powers, there must be a significant process of
separating the purpose and mandate of various arms of government. For one
thing, the executive must not interfere in the internal functions of the
legislature; the legislator must have a political base and support that is not
tied to the executive. The same logic could be used to explain the argument for
judicial independence. The new Kenyan constitution was very explicit on the
independence of the judiciary. In terms of the relationship between the
judiciary and president in Kenya,
the details are set out in Article 171 of Kenya’s 2010 Constitution, which
established the Kenyan Judicial Service Commission. Unlike in Nigeria, it is
the Kenyan Judicial Service Commission that has the sole authority in
nominating and initiating the removal from office of judges of superior courts
of record. In Kenya
also, the judiciary is financially independent from the executive. Article 173
of the Constitution empowers its Chief Registrar to submit its budget directly
to the National Assembly for approval. The president’s role in appointing
judges is largely ceremonial. The JSC’s nominations for Chief Justice and
Deputy Chief Justice are subject to parliamentary approval. All other judges
are appointed upon recommendation by the JSC.
That President Kenyatta could throw mud on the Supreme Court
judges is unfortunate. He must understand that millions of Kenyans expressed
dissatisfaction with the process that returned him to power. I expect him to
thank the Supreme Court for saving Kenya from another potential and
far more consequential post-election violence. The Court has stipulated a new
date for the election. Both Uhuru Kenyatta and Raila Odinga- great and
eminently qualified individuals- should go back to the electorate. And this
time, IEBC must do a better job and stop being partial.
What is in all this for Nigeria? It is indeed sad that in Nigeria today,
it is the depth of your pocket that determines what manner of judgment you get.
I am not trying to exaggerate the matter but that is the simple truth. In 2007,
the Nigerian INEC robbed Nigerians of their vote and installed its own
preferred candidate. Even when this barefaced electoral robbery was brought
before the Nigerian Supreme Court; and with the beneficiary of that criminal
process confessing to the crime that the process which brought him to power was
flawed, the Nigerian Supreme Court could not annul the election. Ridiculously,
the court upheld that election “in the overall interest of Nigerian unity”.
What the Kenyan experience has shown is that a people-based constitution is
fundamental in the political structure of any country. It is the constitution
that sets the tone of political engagement and structure. Because of the nature
of the present Kenyan constitution, contesting parties can go to court
believing that they will get justice. The people are happy and have confidence
in the judiciary as the constitutional purveyor of justice.
This is not so in Nigeria. The Nigerian constitution
is a military imposition designed for the domination of one particular section
of the country. The Nigerian constitution does not guarantee judicial
independence and is alienative of the people. The Kenyan constitution had such
features until 2007, when the contradictions of its colonial political
structure threw the country into anarchy forcing the various nationalities in Kenya to come
to a negotiating table. The outcome of that process was the 2010 Kenyan constitution.
Nigeria
does not have to wait for the upheaval that dislocated the Kenyan society
before it subjects itself to the recalibration of its constitution and
political structures. We have trodden the road of violence before. A second
attempt on this road would be a journey into the land of no return. We must
learn from this Kenyan example.
*Dr Arthur Agwuncha Nwankwo is a publisher,
award-winning author, political scientist, historian and chairman of Fourth
Dimension Publishing Company, the largest publishing company in Sub-Sahara Africa with
over 1,500 titles.
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