Sunday, March 31, 2013

USA Africa Dialogue Series - Re: [Mwananchi] Kenya’s Supreme Court Renders a Bad Ruling

People, my responses are in  blue
In a message dated 3/31/2013 5:52:04 P.M. Eastern Daylight Time, writes
Kenya's Supreme Court Renders a Bad Ruling
That is a matter of opinion; not a statement of fact.

I respect Kenya's Supreme Court Justices but I beg to disagree with the Justices. They rendered a bad decision on Saturday. Here are 6 reasons why.

First, given the highly charged political atmosphere, they should have stayed above the fray, instead of inserting themselves into it by declaring or confirming Kenyatta or Odinga as the winner. Now they risk being seen as "compromised" or "partisan," favoring one candidate over the other.

The Kenyan Supreme Court, constituted under Article 140 and subject to clause (4) and (5) of Article 163 of the Constitution, has exclusive  jurisdiction to receive, hear and rule on disputes relating to the elections of persons to the Office of Presidency. Its job is not premised on sticking a finger to feel  which way the political winds blow.
That contested elections normally occur in "highly charged political atmosphere"  is like saying rain wets. But the court is not expected to shrink from its constitutional mandate due to partisans poised with daggers drawn.  A party to the dispute may loose as a normal outcome. The notion that  the Kenya Supreme Court ruling is tantamount to favoritism makes mockery of the institution. The double standard  is unexplained given that Gore vs Bush occurred in no  less a feverish political atmosphere but  the US Supreme court ruled to end the stalemate. 

Second, the SC ordered a re-tally of votes from 22 polling stations out of a total of 33,400. The sample was too small. Admittedly, the Supreme Court had only 6 days to make a ruling and, further, CORD (the Odinga camp) may have suggested a scrutiny of those 22 polling stations. However, if that small sample revealed evidence of irregularities, logic suggests that the large remainder must also contain irregularities that must also be scrutinized. If a portion of the meat is spoilt, would you cut it off and eat the rest?

Similarly, the whole of Florida was not subject to a recount. Apparently, Floridians did not died of spoilt meat eaten.  The recount occurred in only three counties that reported exceptional circumstances: Broward; Volusia and Orange counties covering 175,037 of the approximately 6,000,000 ballots cast.

 Third, the decision does not erase the widespread suspicion that there were nefarious attempts to manipulate the results and rig the election. It is a bit of a stretch to attribute the irregularities to "clerical" or "human error." How does one explain:

1.     The sudden break-down of IT or electronic transmission of results, necessitating manual tabulation?

2.     The break-down of biometric equipment, necessitating voting without biometric verification?

3.     The mysterious expansion of over 1 million voters in the electoral register for the presidential election but not for the parliamentary?

I am afraid, these suspicions will linger and no one knows what they will morph into.

Where on planet earth are legal decisions meant to erase suspicions, which, by nature, are guided by intense instincts without proof while rulings are premised on evidence? Even in recent US elections, there were reports of machine malfunction; it happened suddenly, no warning on a preplan to fail. Here is  a headline:
Partisans were in courts from Pennsylvania to Ohio for alleged conspiracies to defraud the electorate, including voter suppression. The spectacles of butterfly ballots, switch from machine to manual counts under torch lights, etc. were spectacles to behold. Nobody suggested "animal errors" were committed when recount yielded new figures.
All manners of suspicions envelope elections even in advance democracies. What is new in Kenya?
Fourth, Kenya is dangerously polarized politically. Uhuru's win of 50.07 of the vote is one the narrowest majority and the "minority" is nearly 50 percent of Kenyans who did not vote for him. That means nearly half of Kenyans are not going to like the Supreme Court decision and will still feel aggrieved. This is dangerous because, in Africa, it takes a small group of determined mal-contents to wreak havoc and mayhem -- let alone half of the electorate.
If Kenya wanted candidates to win by landslides, the provision would be formal; not arbitrary yardsticks.
 John Kennedy led by .17%;  Clinton was elected with a plurality vote, skies did not fall in the US and there were no aggrieved centers.
In 1996 only 49% of US of eligible voters went to the polls. In 2012 the figure was 57.5%.  We are looking at the fact that in some cases half of the US electorate did not even participate in choosing who governed them. The turnout for the 2013 Kenyan election was 86.91% .
In the 2000 US elections, the elected president lost the popular votes. Given the logic, more people who voted did not like the Supreme Court decision. What could be more dangerously polarized politically?
The sovereign people of Kenya defied foreign journalists looking for havoc and mayhem, and conducted a peaceful election with a record turnout.
In 1985, the late General Samuel Doe held elections in Liberia.  When it appeared that he was losing, he ordered the vote count halted. Ballot boxes were then transported to a secret location at the army barracks where the votes were tallied and Doe declared the winner.  Charles Taylor refused to countenance this contumely and started a "bush war" with only 100 men. The rest is history. Similarly in Uganda, Yoweri Museveni started out with only 27 men.
These are irrelevant comparisons for caricaturists. No incumbent in Kenya aborted the vote count  and squirreled into the wilds with ballot boxes. Raila conceded and Kenya's democratic transition is a measure of her civic maturity, however nascent.

Fifth, the Supreme Court decision does not ease but would rather exacerbate tension in the country. Kenya is also deeply polarized along tribal and religious lines. Gikuyus voted for Kenyatta, Kalenjin for Ruto and Luo for Odinga. Religion or tribal politics is a very dangerous proposition in any African country. In Kenya, there is a perception that the Gilkuyus have dominated both the political and economic scenes. Of Kenya's three presidents since independence in 1963, two – Jomo Kenyatta and Mwai Kibaki -- have been Gikuyu; Daniel arap Moi is Kalenjin. Further, the Kenyatta family are the largest land owners in Kenya and among the richest in Africa.

Black people gave Romney zero vote, rednecks gave Obama zero votes. US is deeply divided by  red and blue states to the extent that candidates do not even bother to campaign in hostile states.  The term "battleground states"was coined to identify the handful of states  were elections are won or lost. It gets worse. For example, unless a jurisdiction is gerrymandered in a state, local candidates of certain backgrounds cannot win.
People, I cite these to indicate that Africans are typically projected in worse light when the phenomena abound in other places.
What has Uhuru as a landowner got to do with anything if his wealth did not disqualify his candidacy?  Many of the early US presidents were rich landowners, including plantations and slaves owners. 
In Nigeria, tribal politics led to the Biafran War (1967-70). The Igbo, through their own hard work and determination, had become very successful, dominating senior positions in government, educational institutions, etc. But it bred tribal resentment and persecution, which propelled the Igbo to secede. Over 3 million – mostly Igbos – died in the ensuing war. In Rwanda, tribal politics led to the 1994 genocide, in which 1 million Tutsis were slaughtered. In Ethiopia, tribal politics has stunted that country's growth prospects. In Ivory Coast, it was the politics of religion. The country was split into the Muslim North and Christian South after the Nov 2010 elections. Similarly in Mali, where the Muslim Tuaregs have long chafed under Christian South domination and discrimination. In Kenya, the Mombasa Republican Council, a Muslim group, is demanding secession. They were responsible for a series of attacks on polling stations in the March 4 elections. Clearly, the Kenyan Supreme Court cannot claim to be unaware of these developments. Note: Nearly all the civil wars in post colonial Africa were started by politically marginalized or excluded groups.
Very novel duty for the Kenyan Supreme court judges to study wars in order to render legal decisions that must be based on jurisprudence.
Sixth, the Supreme Court's decision – wittingly or not – pokes a finger in the eye of the ICC, which has indicted Kenyatta and Ruto for crimes against humanity.  To be sure, the ICC indictment was not the issue being challenged at the Supreme Court but by confirming that Kenyatta and Ruto won the elections, the Supreme Court has indirectly passed judgment on the case. It is as if the Supreme Court is saying the ICC can take a hike. The Supreme Court will not cooperate in bring Kenyatta and Ruto to justice as it has certified them as winners of the March 4 elections. And, further, the ICC indictment does not disqualify Kenyatta to be president of Kenya when in fact the Supreme Court should have debarred the two from contesting the presidential elections until they cleared their names.
Bingo! The ICC was vetoed by the sovereign people of Kenya. The  suggestion that the Kenya Supreme Court could do the bidding of the ICC is an insult to the collective intelligence of Kenyans. 
The ICC indictment puts Kenya in a diplomatic quandary if Kenyatta becomes president. He may be shunned diplomatically and risks arrest if he travels to Europe. It is unlikely President Obama will ever invite him to the White house or be seen with him.
If the ICC is serious in its impartial pursuits, it had the chance to catch Bashir of Sudan when he landed in plain daylight in Tripoli and within the reach of western forces. But because Bashir provided troops to overthrow Gaddafi, human rights activists screamed for his arrest to no avail. But the same ICC has been harassing  African governments to catch Bashir when he steps foot in their countries.
Who is a fool to who? 
US needs Kenya to fight terrorists and pirates, Kenya is the biggest economy in East Africa and Uhuru would be pinning to visit White House? Has  Africa not gone past the Kaffir boy era?
At any rate, the SAFEST decision the Supreme Court could have rendered was to order the Electoral Commission to re-tally the votes in ALL polling stations since the sample of 22 polling stations showed some irregularities and if neither candidate secured 50 percent plus one, to schedule a run-off.
Opinions are okay  but the decision of the Supreme Court must be respected. 
A run-off would mop up the stench of tribalism as it would force candidates to canvass for votes or court tribal groups other than their own. It would also put to rest the suspicion that the March 4 vote was manipulated or rigged. My preference would be a re-run of the entire elections because of the high number of rejected ballots. Voters were confused. This time, however, a new Electoral Commissioner should be employed. [The current one, Isaack Hassan, cannot be trusted.] The difference in cost of running a run-off and a complete re-run is likely to be same as it is the same electorate voting again. If a portion of the meat is spoilt, the entire meat should be thrown out.
Mopping stench of tribalism is hardly a reason to hold new elections. The extrajudicial experiment maybe unconstitutional. 
 Since 99% of the voters were not confused given that the rejected ballot made up less than 1%, the cost of redoing an election may outweigh any benefit. The assumption that only Raila's supporters were confused is the only hope to change the outcomes. But it is a degrading slap to think a group of voters is more stupid.  
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