Restoring judicial authority in African elections: The case of Kenya [Article]

In this day and age of democratization in Africa, many Africans have joined the queue to exercise their democratic franchise to liberate the continent from corruption, tyranny, gross impunity, injustices, oppression, economic hardship, inequity and all forms of bad leadership.

The quest for such an exercise in my opinion is nothing but to choose the right leader or leadership capable of restoring hopes and transforming the socio-economic and political landscape of the continent. In other words, improving lives.

Ghana recently had a taste of this simple but critical task of restoring our dignity as a people and deepening the rule of law, justice, good governance and the will and freedom of every Ghanaian in the streets of Makola to Kejetia, Yendi to Aflao, Ashaiman to Nima, Dakpa to Damango and from Keta to Kebi.

And once more, the country came out successful as a true beacon of democracy in the South Saharan Africa. That notwithstanding, Ghana’s 2012 poll equally faced a legal litmus test at the Apex Court of the Land.

The verdict:

The 9-member panel of Supreme court of Ghana, who sat on the just-ended presidential election petition of 28th December 2012, has by unanimous decision ruled that the incumbent President John Dramani Mahama of the ruling National Democratic Congress (NDC), was validly elected and declared president of the Republic of Ghana in the presidential poll of 7th and 8th December 2012-source, justice ghana.com.

In reading the verdict dismissing the petitioners’ claim, the presiding judge Justice William Atuguba said: “Well, this is the decision we have arrived at:

“Upon a scrutiny of the petition, we found that the issues to be determined are as set out at page 125 of the counsel for the petitioners’ written address were as follows:

  1. Over voting;
  1. Voting without biometric verification;
  1. Absence of the signature of the presiding officer;
  1. Duplicate serial numbers, that is to say occurrence of the same serial numbers on pink sheets for two different polling stations;
  1. Duplicate polling station codes, that is to say occurrence of different results of pink sheets for polling stations with the same polling station codes;
  1. Unknown polling stations, that is to say results recorded for polling stations that are not part of 26,002 polling stations provided by the second respondent in the petition.

“We unanimously dismiss the claims relating to duplicate serial numbers, duplicate polling station codes, and unknown polling stations, that is for short.

“Atuguba, Adinyira, Baffoe-Bonnie, Gbadegbe, and Akoto-Bamfo, dismiss the claim of over voting.

“Atuguba, Adinyira, Baffoe-Bonnie, Gbadegbe, Akoto-Bamfo, dismiss the claims relating to absence of signature of presiding officer.

“Atuguba, Adinyira, Dotse, Baffoe-Bonnie, Gbadegbe, Akoto-Bamfo dismiss the claim relating to voting without biometric verification.

“Ansah, Owusu and Anim Yeboah grant all the three claims, that is to say, over voting, absence of presiding officers’ signature and voting without biometric verification, annul the votes involved and order a rerun of the affected areas.

“Dotse JSC grants the claim of over-voting but has provided a road-map in his judgement as in the figures of votes to be ascertained and cancelled and a re-run of the areas affected.

“Dotse JSC upholds the claim relating to absence of presiding officers’ signatures on the pink sheets cancels the results concerned and orders a rerun of the areas affected

“Baffoe-Bonnie JSC grants the claim of voting without biometric verification cancels the votes involved and orders a rerun of the areas affected.

“In the circumstances the overall effect is that the first respondent was validly elected and the petition is therefore dismissed.

“Our various judgements for the sake of convenience are handed over to the registrar of this court

“We highly commend the services of KPMG, the referee appointed to undertake the count of the pink sheet and also the counsels on all sides of this case.

Post 2012 electoral temperature in Ghana:

That election result and post management mechanisms especially with the demonstration of political, electoral and judicial maturity, reaffirmed Ghana’s commitment to building a sustainable peaceful society and respect for the rule of law.

Nigeria cannot be left out in this episode. The PDP political dominance became virtually desolate by the emergence of APC under the leadership of Buhari, which eventually led to victory in 2015. President Buhari purely won on and by the integrity factor; fight against corruption, fight against Boko Haram, better economy, and other militant insurgencies. It’s just unfortunate the economic situations declined exponentially after what the whole world termed as ” a successful electoral process “. The lessons continue.

The case of Kenya is not an isolated scenario.  I must say, that beautiful country, an economic hub within the East African economic bloc, has seen diverse faces and daunting challenges of political leadership, ranging from terrorism to ethnic classes and brutalities resulting from political volatilities, etc. We have also seen the posture and response of the international community as well. The invitation of the International Criminal Court and the image game on the continent of Africa and the world at large is a matter that deserves further studies and investigations.

I will describe the Kenyan election petition verdict by the Supreme Court, as a strategic step in restoring the African Judicial Authority and making Justice work on the continent. Not necessarily what observers from the West, East and within say but what the Law and the Best Practice say. Africa needs a legal framework and institutions that must work and be respected by all.

The Kenyan election was declared and sanctioned by all the international observers as free and fair and declared President Kenyatta as the winner. My worry is, what went wrong with the critical electoral lenses of these observers? Should we develop another mechanism as a benchmark for the observers to use to validate the process as free and fair? Did they do a proper assessment before validation? Can the public be informed about the validation processes and the science behind it since we leave in ‘technoelectionage’?

Out of frustration I think, President, Kenyatta says Chief Justice ‘and his thugs’ cancelled election. He vehemently criticized the Supreme Court judges for overturning the 8 August election, which the electoral commission had declared in his favour last month. A statement he made whiles addressing his supporters at a popular market in the capital, Nairobi.

According to him, “A few people have sat there thinking they know it all, but we have said, because we believe in peace and because we believe in the rule of law, let them say what they want.”

The president had earlier said the ruling went “against the will of the people”, but pledged to respect it.

He told his supporters:

Let those five, six people know, since the Kenyan people will still decide, they should wait for us to act after the people have made their decision.

Mr. Kenyatta also said that the judges were “paid by foreigners and others. I refer you to do a critical assessment to the Kenyan situation and comment from leadership.

There is an interesting inter connectivity between the polls in the two countries.

The then opposition leader of the New Patriotic Party, Nana Akufo Addo, who’s currently the President of the Republic of Ghana said, ” I have called President John Dramani Mahama and I have now congratulated him on being elected the fourth president of the Fourth Republic of our country.

The Supreme Court of our nation has spoken and the result of the December 2012 presidential election has been confirmed as having been won by the candidate of the NDC, President Mahama.

As I said earlier, whilst I disagree with the Court’s decision, I accept it. I accept that what the Court says brings finality to the election dispute. We shall not be asking for a review of the verdict so we can all move on in the interest of our nation. Everything in my bones, in my upbringing and in what I have done with my life thus far makes it imperative that I accept a decision made by the highest court of the land, however much I dislike or disagree with it.

I am saddened by the verdict and I know that many of our supporters are saddened too. However, for the sake and love of our country, we must embark on a path that builds, rather than destroys, to deal with our disappointment.

I appeal to all members and supporters of our party, the NPP in particular to accept the verdict of the court. Even in our disappointment we can take pride in the way we have conducted ourselves. Even in our disappointment we can take pride that the NPP has again led the way in deepening Ghana’s democracy. To quote one of the Supreme court judges, “After this case, elections in Ghana will not be the same.” In other words, we might not have been given the ruling we sought, but thanks to our efforts, we can hopefully look forward to an improved electoral process in our country.

I am grateful to my co-petitioners, Jake Obetsebi Lamptey and Dr. Mahamudu Bawumia for their hard work, dedication and their commitment as we pursued the legal options available to us. My gratitude goes also to the Lawyers and the technical team for their unbelievable hard work and sacrifices. I am grateful to all the volunteers who spent days and nights working on pink sheets, entering data, photocopying documents, and labeling exhibits for the Petition. I am grateful to all the well-wishers for their prayers.

I must also thank my party the NPP, the officials, the foot soldiers and supporters for their unflinching support and belief in me. The National Council of the party, having taken the decision to go to court, has been unwavering in its support”.

This national political maturity exhibited itself again when President John Mahama lost his second bid to the same contender in a fiercely contested election in 2016. Though the performance was heart breaking and shocking to the National Democratic Congress, under the leadership of President Mahama, he was left with no opportunity and option than to accept the voice of the people no matter how painful and difficult it was. Many people described that result as an abysmal performance in the history of democratization in Ghana.

In spite of the disappointment, the leader of the ruling National Democratic Congress, President John Mahama came out with a heavy heart and said,

” My fellow Ghanaians,

My Brothers and Sisters,

A while ago, I phoned Nana Addo Dankwa Akufo-Addo and offered him my congratulations for emerging the winner of the 2016 Presidential Elections.

He continued, “every election is a hard-fought battle, and this one was no exception. For those of us who choose to be contenders and go into electoral contests, we go about it as a win-lose proposition.

We believe that only one person can emerge as the winner. And while it is true that only one person can be elected President, in reality, and certainly in a democracy such as ours, every election is an opportunity for the people of this nation to express their will, to have their say in who will lead them in the shaping of Ghana’s future.

In this way, each victory belongs to the people. And the true winner is always Ghana.

It is precisely on account of my belief in Ghana and its future that notwithstanding the irregularities associated with this election, I have decided at this stage to congratulate the President-elect.

With this understanding, I would like to assure the people of Ghana of my commitment to the sustenance of our country’s democracy and would work to ensure a smooth and peaceful transition to the incoming administration.

I remain committed to the unity and stability of our great nation”. The line continues.

Kenyatta, Odinga, Kenya and Africa at large should learn from the tone and language from these leaders and many other good examples. Love for country and respect for the rule of law is supreme.

I think politics and democracy in Africa at large must be looked into critically. We need to move beyond the electoral spasms, self interest and focus on the collective will and a true service to humanity. Especially in this day and age of digital migration, where a fair electoral process can be jeopardized by few wicked self-centered technocrats.  These complexities can only be resolved if we integrate Integrity into the electoral software. America is believed to have suffered same deficiency. Compromising the electoral machinery is compromising the will of the people. And this is a recipe for conflict, which can easily degenerate to volatile situations.

The only recommendation at this stage is resilience in adversity. We need to guard our tongue not to spew violence and undermine the judicial structures with our utterances. There’s hope for Kenya.

The opposition party at this stage, under the leadership of Raila Odinga, also needs to restrain their supporters from indulging in unhealthy provocative behaviors and ensuring on a campaign devoid of insults, attacks and all forms of social vices that lead to confrontation and possible conflict.

Western powers should take special interest in enhancing and advancing the true will of the people instead of supporting a regime against the will of the people or changing the regime against the will of the people.

I entreat all Kenyans to take heart and do this expensive assignment again for Africa. Let’s not think it’s Kenya. It’s Africa, the hope of the new world. Africa must work. Let’s all pray for Africa.

By Donald Cog Senanu Agumenu