Kenyan Judiciary creating a new African Jurisprudence
By Dr. Munyonzwe Hamalengwa
Finally there is an actual precedent in Africa where a Presidential election petition has led to the nullification of a declared Presidential election victory. No longer should African judiciaries be fear-struck and remain captured and beholden to their appointing authorities and refuse to annul rigged elections, the won’t of many African elections.
A former Chief Justice of Uganda once lamented after leaving office that the decision to award a victory to Museveni in a previous disputed election was a mistake. This is circumstantial evidence that the Ugandan judiciary knew they were making a wrong decision. Museveni’s victory in 2016 was disputed and still the judiciary gave the victory to the status quo as has been the case till now, in the whole of Africa and the world, minus the Austrian election of July 2016 which was annulled. That is not much of a precedent in an African setting.
The 2013 election in Kenya was disputed and there is huge literature on that election pointing to the deliberate failure of the judiciary to overturn that election due to lack of any precedent at that time in which a declared Victor had been stripped of power by the judiciary. The judiciary is wary of second-guessing a people vote no matter how flawed.
Read upon the judicial challenges to rigged presidential elections in Zimbabwe and you come out swearing at the utter impotence and churlishness of the Zimbabwean judiciary.
In Zambia, the disputed election of 2001 took years for the judiciary to release the decision which at the time it was handed down would have been moot because the president had almost served his time in office. President Chiluba declared on Dr. Ssali’s Voice of Africa programme that he had rigged the election and deprived Anderson Mazoka of the presidency. We need not rehearse the result of the disputed election of 2016 in Zambia. Who is to blame for the abdication and abortion of the election petition? The jury is still out on whether it is the judiciary or the main Opposition’s lawyers that led to a cliff-hanger result which continues to eat the Zambian body-politic. Is there still a petition going on now or is it over?
The advantage of the Kenyan precedent is that the petition was televised. It was obvious listening to the evidence that the election was rigged. The judiciary would have looked really corrupt and insane if they rubber stamped that election result. They made up for the ridiculous decision of 2013 if one analyses the literature on that election petition decision. However, that decision could have gone either way. This one was do obviously rigged and the Kenyan judiciary still takes its oath of office seriously.
In Zambia neither were the motions televised nor the evidence of rigging publicized. Publicity is a disinfectunt. The election could have been rigged but we have no publicized evidence. The election could have been flawless but in the result that the petition was never publicized as it was in Kenya through the televised judicial process, we may never know how fair and flawless the 2016 elections were.
The judicial election precedent established by Kenya now is humongous. When Kenyatta told the opposition to go to court if they were dissatisfied with the election result, he talked like a man who knew his judiciary. Apparently he does not know his judiciary. Former Chief Justice of Kenya Willy Mutunga was in Lusaka last month and gave a talk centred on how the Kenyan judiciary is embarking on creating a new African Jurisprudence. There is clearly new jurisprudence out of Kenya which we must celebrate. Kenyatta may still win the next election based on demographics, but the last word for us is that, the judiciary has spoken. The precedent is unprecedented.
Dr. Munyonzwe Hamalengwa is the founder of the new LLM and PhD Programmes in Law in the School of Law at ZAOU where he teaches Criminal Law, Jurisprudence, Intellectual Property Law, Medical-Legal Law and Graduate Research Methodologies.