Electoral Justice in Kenya and Nigeria, By Femi Falana
…it is undoubtedly clear that the Supreme Court of Kenya has freed itself from the dangerous influence of Nigerian courts by jettisoning the doctrines of substantial compliance and proof of election petitions beyond reasonable doubt. In line with the provisions of the Electoral Act 2016, it has also embraced technology to facilitate the hearing and determination of election petitions within 14 days.
Both Nigeria and Kenya have been battling with electoral malpractice and political violence for over a decade. The 2007 general election in Nigeria was truly a “do or die” affair as declared by President Olusegun Obasanjo. Hundreds of people were killed by security forces for protesting the brazing manipulation of the results of the general elections. The Ahmed Lemu presidential panel set up by President Goodluck Jonathan to probe the mayhem that greeted the announcement of the result of the 2011 presidential election found that 943 people were killed, while 838 others were injured. While the federal government paid over N10 billion as reparation to the victims of the riots, it failed to prosecute the 626 who were arrested in connection with arson, culpable homicide and other grave offences perpetrated due to official impunity.
In 2008, the brutal killing of over 1000 people in Kenya during post election violence led to the setting up of a panel of inquiry headed by Mr. Kofi Anan, a former secretary-general of the United Nations. Based on the report of the inquiry, Messrs Uhuru Kenyatta and William Ruto were charged with crimes against humanity at the International Criminal Court (ICC) for allegedly masterminding the politically motivated killings. Notwithstanding the election of both suspects as president and vice president of Kenya respectively in the 2013 general elections, the cases continued and were eventually struck out due to want of diligent prosecution.
Many Nigerian commentators have commended the Supreme Court of Kenya for the revolutionary decision to annul a presidential election. Not unexpectedly, such critics have censored the Nigerian judiciary for invoking the nebulous doctrines of substantial compliance to uphold the results of fraudulent elections. Some lawyers have gone to the extent of blaming Nigerian judges for the undue delay in the hearing of election petitions. With respect, the comparison of the decisions of the Supreme Courts of Nigeria and Kenya on election petition is rather odious. Hence it has become necessary to review recent developments in the electoral jurisprudence of both countries.
Fidelity to the Kenyan Constitution
However, based on gross irregularities and violence that had marred the 2007 general elections which led to political violence in Kenya, the members of the political class decided to use the instrumentality of the law to sanitise the political system. Thus, in 2010, Kenya decided to enact a new Constitution through a popular and democratic process. At the end of the day, the Kenyan people produced one of the best constitutions in Africa. To prevent a delay in the hearing of election petitions, section 140 of the Constitution stipulates that presidential election petitions shall be heard and determined within 14 days. It is pertinent to recall that the Supreme Court of Kenya had dismissed the petition filed by Mr. Raila Odinga against the 2013 presidential election won by President Uhuru Kenyatta on the ground that it was conducted in accordance with the Electoral Act. See Raila Odinga & 2 others v Independent Electoral & Boundaries Commission & 3 others  EKLR.
That decision was largely influenced by Nigerian cases which were relied upon by the Court. But the Kenyan parliament decided to review the electoral system by enacting the Electoral Act 2016 to provide for electronic voting and the appointment of the chairman and members of the Independent Electoral and Boundary Commission (IEBC) through an interview conducted by a selection board, as well as the Offences Act 2016 to provide for electoral offences and penalties. It was on the basis of such progressive review of the relevant laws that the Supreme Court had no difficulty in upholding the petition of Raila Odinga against the election of President Uhuru Kenyatta held in Kenya on August 8, 2017. See Petition 1 of 2017.
Although the petition was filed on August 18, 2017, the Supreme Court delivered its judgment two weeks later. That was made possible with the aid of technology. The Court allowed a live coverage of the proceedings by the media. Instead of spending precious time on calling hundreds of witnesses to give oral evidence or adopt written depositions and be cross examined by opposing lawyers, the electoral body was ordered by the Court to produce the uploaded results of the election. The registrar of the Court was directed to collect the results and other election materials from the IEBC for examination by the parties and the Court. In the historic judgment, the Court validated electronic voting. However, the court found that the massive irregularities in the transmission of election results had compromised the integrity of the election.
…in attacking the judgment of the Supreme Court, Mr. Kenyatta exposed himself to serious embarrassment, as both himself and the Independent Electoral and Boundary Commission (IEBC) as co-respondents failed woefully defend the integrity of the election, when given the opportunity to do so by the Court.
In annulling the results of the presidential election, the Supreme Court found held that the IEBC had “failed, neglected or refused to conduct the presidential election in a manner consistent with the dictates of the Constitution.” Although the “reasoned and considered judgment” would be made available not later than 21 days, the summary has confirmed the unqualified commitment of the court to the rule of law. Before the judgment was delivered, Chief Justice David Maraga had rightly set the tone for the business of the day when he noted that “the greatness of any nation depends on its fidelity to its Constitution and adherence to the rule of law and above all respect to God.”
Since it is the first time that any court has annulled the result of a presidential election in Africa, the judgment has far-reaching implications for democracy and the rule of law in the continent. Although the details of the judgment have not been provided, the summary of the findings and orders made by the Court have sufficiently confirmed the independence of the judiciary of Kenya. It is particularly significant to note that the Court rebuffed pressures from local and foreign economic interest groups who had wanted a judicial endorsement of the malfeasance that marred the presidential election.
While reacting to the judgment, the petitioner, Mr. Raila Odinga of the National Super Alliance (NASA) said that it “marked a historic day for the people of Kenya and by extension for the people of the continent of Africa.” He faulted international election observers who had attempted, in their reports, to legitimise the electoral fraud by saying that the election was credible, fair and free. One of the election monitoring groups, The Carter Center led by former United States Secretary of State, Mr. John Kerry was particularly patronising in its endorsement of the results of the election. While asking Mr. Odinga to move on and stop protesting the election results, Mr. Kerry said the election was fair and free.
The election observers of the Commonwealth and African Union equally claimed that the election was credible and that its results should not be challenged. But the judgment of the Supreme Court has questioned the credibility of the choreographed sanitation of the fraudulent election results by the so called representatives of the international community. Not a few interest groups called Mr. Odinga a bad loser for approaching the Supreme Court for legal redress. But it turned out that the filing of the petition doused tension in the country as angry protests had led to the killing of not less than 24 people by security forces.
President Kenyatta’s Attack On Judges
In his initial reaction to the verdict, President Uhuru Kenyatta said that even though he disagreed with the decision, he would respect it. But in an angry attack of the judiciary at a rally held in Nairobi later that day, the president said: “Every time we do something, a judge comes out and places an injunction. It can’t go on like this…there is a problem and we must fix it. I think clothes they wear make them think they are more clever than the rest of Kenyans. Maraga thinks he can overturn the will of the people. We shall show you….that the will of the people cannot be overturned by a few people.” As if that was not enough, the president called Chief Justice Maraga and his colleagues “wakora” (meaning crooks or squirrels in Swahili language).
Apparently disturbed by the highly contemptuous statement of the head of state, the Kenyan Law Society has promptly criticised the official threat to subvert the independence of the judiciary and intimidate independent minded judges in the country. On its own part, the Kenyan judges have joined issues with President Kenyatta over the veiled threat credited to him. In a statement issued by the Kenyan Magistrates and Judges Association, the judges condemned what it called “assault on the decisional independence of the honourable judges.” Since politically motivated killings are rife in Kenya, the Pan African Lawyers Union (PALU) should request President Kenyatta to guarantee the security of the life of each of the four judges who handed down the majority judgment of the court, as well as other judges who might have granted injunctions against a government that believes that its actions cannot be overturned by any court, even in the face of illegality
However, in attacking the judgment of the Supreme Court, Mr. Kenyatta exposed himself to serious embarrassment, as both himself and the Independent Electoral and Boundary Commission (IEBC) as co-respondents failed woefully defend the integrity of the election, when given the opportunity to do so by the Court. Apart from the refusal of the IBEC to produce all the election materials in defiance of the order of the Court, the respondents’ lawyers had urged the Court to hold that the irregularities identified and proved in the petition were not sufficient to vitiate the results of the election. But after a painstaking review of the evidence and the submissions of the petitioner and respondents’ lawyers, the Court came to the conclusion that “the election was not conducted in accordance with the Constitution, rendering the declared results invalid, null and void.” Consequently, the Court ordered the IBEC to conduct fresh presidential election within 60 days.
Sequel to the annulment of his election, Mr. Kenyatta ought to have been ordered by the Supreme Court to vacate office since he lacks any legitimate claim to continuing to occupy the presidency of Kenya. But fortunately for him, he was not found to have been directly involved in the electoral malpractice which led to the annulment of the presidential election. For that reason, he shall remain in office as president in an acting capacity, pending the emergence and swearing of a new president produced by the fresh election pursuant to sections 134 and 142 of the Constitution. However, to ensure the success of the fresh election which has been ordered by the Supreme Court, the IEBC should be reconstituted. Having been judicially indicted in the management of the general elections, the IEBC Chairman, Mr. Wafula Chebukati and other members of the electoral body should be sacked and prosecuted under the Election Offences Act, 2016.
…it is pertinent to point out that while election petition tribunals and the Court of Appeal have not hesitated to quash the results of elections conducted in contravention of the Electoral Act, the Supreme Court has consistently upheld the results of controversial presidential elections since 1979.
While reacting to the ruling of the Supreme Court, the IEBC said that the date of the fresh election would not be fixed until it has reviewed the considered judgment of the Supreme Court. Even though the Court has not made the judgment available to the parties, the IEBC has fixed October 17 for the fresh election. The IEBC has been accused of announcing the date based on alleged pressure from the government. It is, however, difficult to dismiss the allegation of official pressure since the full judgment has not been released by the court. Having not read the judgment to know the full details and extent of the contraventions of the Electoral Act, the IEBC is likely to repeat the same irregularities and illegalities which led to the cancellation of the election results.
Annulment of Election Results by Nigerian Courts
In 2007, the several questionable returns made by the Independent National Electoral Commission (INEC) were challenged in the courts. The results of the governorship elections in Ondo and Edo States were annulled by the election petition tribunals and the Court of Appeal. The seats of scores of legislators were declared vacant by the courts. In fact, in Buhari V INEC (2008) 4 NWLR (Pt 1078) 246, the Nigerian Supreme Court almost quashed the result of the presidential election, as only four out of the seven Justices upheld it in favour of the respondent. In distancing themselves from the majority decision of the court, Adesola Oguntade and Aloma Muktar JJ.S.C., as well as Walter Onnoghen JSC (as he then was), annulled the election on the ground that it was not conducted in accordance with the Electoral Act. In the dissenting judgment, it was found that the ballot papers used by the INEC were not marked and serialised as stipulated by law.
In 2011, the results of the elections of not less than five governors were annulled by courts, which ordered fresh elections in the affected states. Many legislators also lost their seats on the grounds of electoral malfeasance. The INEC chairman, Professor Mahmoud Yakubu has just disclosed that the courts, including the Supreme Court, have nullified the results of 117 elected officials who emerged in the 2015 general elections due to illegal party primaries or fraudulent election results. As no democratic country in the world has ever recorded a greater number of annulments of election results, it is totally misleading to give the highly erroneous impression that Nigerian judges have always upheld the results of fraudulent elections.
Electoral Injustice in Nigeria
Although the petition against his election was dismissed by the Supreme Court, President Yar’Adua said that the election was fraudulent and proceeded to set up the Mohammed Uwais-led panel to probe the conduct of the election and make appropriate recommendations. The panel recommended inter alia that the appointment of the chairman and members of INEC should be by advertisement, and there should also be the setting up of electoral offences tribunals and the conclusion of all petitions before the inauguration of elected governments. The Ahmed Lemu presidential panel set up by President Jonathan in 2011 made additional recommendations to guarantee credible elections. But the Peoples Democratic Party (PDP) and the All Progressives Congress have refused to implement the recommendations of both panels.
However, amendments were made to the Constitution in 2010 and 2011, while a new Electoral Act was enacted in 2010 by the National Assembly. The Electoral Act has been subjected to many amendments. Pursuant to section 52 of the Electoral (Amendment) Act 2015, the effect that “voting at an election shall be in accordance with the procedure determined by the Independent National Electoral Commission”, the Commission introduced the use of card readers for the accreditation of voters. In spite of the opposition of the then ruling party, (the Peoples Democratic Party) the Attahiru Jega-led INEC conducted the 2015 general elections with the aid of card readers. Manual accreditation of voters was however allowed, if the card reader machine malfunctioned.
Accordingly, many tribunal and judicial divisions of the Court of Appeal nullified elections where voters deliberately ignored the use of card readers for accreditation. Curiously, the Supreme Court set aside the annulment of some governorship elections on the ground that INEC acted illegally by introducing the use of the card reader. In a critique of such judgments, I was compelled to challenge the apex court for not making any reference to the relevant provision of the Electoral (Amendment) Act 2015, which had empowered INEC to determine the procedure of voting at an election.
But it is pertinent to point out that while election petition tribunals and the Court of Appeal have not hesitated to quash the results of elections conducted in contravention of the Electoral Act, the Supreme Court has consistently upheld the results of controversial presidential elections since 1979. While conceding that such elections were not properly conducted, the court has always validated them by relying on the doctrines of substantial compliance with the enabling law or failure of election petitioners to prove allegations of electoral fraud beyond reasonable doubt. At the Commonwealth Lawyers Conference held in Lagos in 1981, the late Graham Douglas (SAN), who was the nation’s attorney-general during the 1979 general election revealed that the Supreme Court had no choice but to dismiss the case of Awolowo v Shagari (1979) 6-9 S.C 37 as the Obasanjo military regime had concluded the handing over of power to the president-elect, Alhaji Shehu Shagari.
Instead of blaming Nigerian judges for our outdated and unjust electoral justice system, the National Assembly should be prevailed upon to take advantage of the ongoing review of the Constitution and the Electoral Act to make provisions for electronic voting, speedy determination of election petitions…
But since 1999, election petitions have always been determined a year or two after a general election. Thus, at the time the judgment in an election petition is delivered, the elected president would have had the first budget passed, represented the country in international fora and announced major decisions which may include the approval of the appointments of federal judges and performed other presidential functions. Therefore, election petitions which are determined in the middle of the term of sitting presidents are usually thrown out on grounds of public policy. Indeed, if the election petition is upheld and the result is annulled on grounds of electoral malpractice, the apex court is likely to be accused of deliberately promoting political instability in the country!
Unlike the Kenyan Constitution which provides that election petitions shall be determined within 14 days, section 285 of the Constitution of the Federal Republic of Nigeria, 1999 as amended, provides for 180 days for the trial of petitions at the election petition tribunals and 120 days at the appellate courts. Whereas presidential and legislative election petitions are determined by two courts, those arising from governorship elections alone are determined by three courts. Pre-election matters have no time limit. Hence, over two years after the 2015 general elections, some pre-election matters are still pending in the appellate courts!
Although high court judges are competent to hear pre-election matters filed in the courts manned by them, they are disqualified from hearing election petitions filed in the same courts on the ground that they could be influenced by local political interest groups. Therefore they are posted to other states for 180 days in an election year, while other cases being handled by such judges are adjourned sine die. The Electoral Act favours elected persons whose returns are being challenged in court. Having taken oaths of office, the respondents usually frustrate expeditious determination of election petitions. The respondents also collude with INEC to make it impossible for petitioners to prove electoral malpractice as they are denied access to election materials. In the circumstance, they are compelled to apply to election petition tribunals for permission to inspect election materials. Other dilatory tactics designed to prolong the hearing of election petitions are employed by the respondents’ lawyers.
From the foregoing, it is undoubtedly clear that the Supreme Court of Kenya has freed itself from the dangerous influence of Nigerian courts by jettisoning the doctrines of substantial compliance and proof of election petitions beyond reasonable doubt. In line with the provisions of the Electoral Act 2016, it has also embraced technology to facilitate the hearing and determination of election petitions within 14 days. Instead of blaming Nigerian judges for our outdated and unjust electoral justice system, the National Assembly should be prevailed upon to take advantage of the ongoing review of the Constitution and the Electoral Act to make provisions for electronic voting, speedy determination of election petitions, appointment of electoral umpires through advertisement in the media, prosecution of electoral offenders and live coverage of the hearing of election petitions by the media.
However, in the Raila Odinga case, it was established that even though the election was properly conducted, the electoral fraud was committed in the transmission of election results by the IEBC. On the basis of such finding and in view of that fact, two leading professional bodies in Nigeria which have adopted e-voting to elect their officers are currently in court to challenge the alleged e-rigging of elections. The National Assembly should impose a duty on INEC to acquire the vital technology to prevent the hacking of computers and manipulation of election results via technology.
In 2013, the Supreme Court of Ghana dismissed the election petition filed against the re-election of President John Mahama. The proceedings of the court were broadcast live by the media. In upholding the validity of the election, the court placed reliance on Nigerian cases. (See Nana-Addo Akufo v John Mahama, Writ No 31/6/1). Embarrassed by the filing of the election petition, the Electoral Commission (EC) decided to improve on its performance. The EC kept its promise and conducted a credible general election in December 2016. The lesson from Ghana is that if credible elections are conducted by INEC, the filing of election petitions will be totally unnecessary. And if a few election petitions are filed in court, the judges will be in a position to decide them with the aid of technology as the Kenyan Supreme Court has just done.
Femi Falana, a Senior Advocate of Nigeria (SAN), writes from Lagos.
Image credit: REUTERS/Baz Ratner.