HomeOpinion & AnalysisColumnistsLooking beyond the smoke and mirrors of the Kenyan Supreme Court ruling

Looking beyond the smoke and mirrors of the Kenyan Supreme Court ruling

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KENYA is experiencing political turmoil following the September 1 Supreme Court ruling that reverberated across the entire globe.
BY WILTON NYASHA MACHIMBIRA

What cannot be disputed is that Uhuru Kenyatta is treading on sloppy grounds. He is under the international spotlight. One wonders if it’s either a carrot or stick strategy that might work for him to retain the presidency.

He cannot afford to bully the opposition and railroad his way into the presidium, at the same time he can’t contest alone in the rerun because he needs legitimacy. It’s a catch-22 situation, he is caught between a rock and a hard place. It appears as if another GNU is in sight. No amount of sabre-rattling will work for Kenyatta, this in fact calls for diplomacy than duplicity.

In an unprecedented move that set tongues wagging across Africa, the Kenyan Supreme Court nullified the Presidential election results and subsequent victory of Kenyatta.

A judicial precedent was set, one of its kind. A constitutional crisis is looming and the possibility of a political stalemate is apparent. What does this signal to us as Zimbabweans, Africa and the world at large? We need to look beyond the smoke and mirrors of the Kenyan Supreme Court ruling.

By a majority of four to two, the Supreme Court in Kenya nullified Kenyatta’s re-election victory as a result of irregularities committed by the election board. The court also ordered that a fresh ballot be held within 60 days.

“The first respondent (the election board) failed, neglected or refused to conduct the presidential election in a manner consistent with the dictates of the constitution” Judge David Maranga, who announced the verdict, said of the August 8 presidential election that had been adjudged free and fair by local and international observers. Such a bold verdict is alien and taboo in our motherland Zimbabwe.

African Union observers who had endorsed the electoral process as free and fair are under the international spotlight. This is also a setback for the international election observers who gave the election a clean bill of health and profusely praised the election as free, fair and credible.

Their credibility has been irreparably blighted and the future election observers in any African country need to take a leaf from this, as election observing and monitoring should not be a mere ritual. It has to be a duty to be taken with utmost seriousness devoid of cosmetic and window-dressing shenanigans.

The man, Thabo Mbeki, with a notoriety of lauding electoral malfeasance, is in the limelight once again. He was the Head of the African Union Observers Team. The same man whose ill-conceived and ill-fated quiet diplomacy denied the people of Zimbabwe the change they had loudly and legitimately clamoured for via the ballot.

What’s the problem with Mbeki? Is this the so-called African Renaissance he preached (with Shakespearian antics) with zeal and gusto of a new convert? Let’s be doers of the word we preach Mbeki.

Interestingly or paradoxically to be more precise former US Secretary of State John Kerry applauded the Kenyan Election Management Board for putting in place a transparent process for voting, counting, reporting and securing the vote.

The Commonwealth mission’s leader, former Ghanaian President John Mahama, also endorsed the election as transparent and credible. This actually makes people query the role and sincerity of external players in the democratisation agenda. The conclusion is that the nationals in any particular country are their own liberators. A lot of faith in external players will only result in frustration and disillusionment.

Dear Reader, the Kenyan Supreme Court ruling was a wake up call for masters and mistresses of electoral deceit across the world. It signalled the imperator to change the modus operandi on the part of electoral pick-picketers and rascals.

I personally welcomed the ruling and trumpeted it as a triumph for constitutional democracy but the tragedy is that in countries like ours with die hard political Rick Flare characters the ruling has awakened the electoral pickpockets and I foresee pre-emptive strikes being taken against Concourt judges as we approach the watershed elections. To them what matters is the end which is power and power alone, will to power and less will to transformation as Dr Pedzisai Ruhanya would say.

Fellow Compatriot, the Constitutional amendment Number 1 is a case in point. It’s the first pre-emptive strike against the Judiciary by President Robert Mugabe regime. I think President Mugabe saw this coming and decided to deal with the nightmare once and for all. The amendment gives the President the sole discretion and power to select and appoint a Chief Justice.

In spite of the fact that such a constitutional arrangement is common even in western countries, it compromises the independence and integrity of the judiciary. It makes the judiciary subservient to the Executive and flies in the face of the principle of separation of powers (trias politica).

The threat by Uhuru Kenyatta to fix Judge Maraga indicate the African pathogen of paying lip-service to rule of law. Judicial verdicts ought not to be criminalised even if they are unfavorable to the ruling elite. The Gubbay ordeal comes to light, his verdict against the Land Reform and the subsequent fall from grace at the behest of the riotous War Veterans. Questions linger in the minds of many if the new Chief Justice Malaba can be another Gubbay or the Kenyan Maraga.

Many wonder if Justice Malaba will rise above board and distinguish himself as a rare breed capable of pulling the bull by the horns. Will Malaba succeed in upsetting the political contrivance of the Zimbabwean ruling class? The sad news is that Court rulings are flagrantly defied in our motherland and its business as usual.

Fellow compatriot, the opposition in Zimbabwe has something to learn from Raila Odinga and his Nassa party. They successfully unearthed that the elections in Kenya were marred by alteration of documents, trickery and deception.

Are we as the people of Zimbabwe able to unearth the rigging schemes of Zanu PF and submit the evidence even in our compromised courts? Yes we can, but that’s not a prerogative of the opposition alone, it’s an all stakeholder thing, something that demands a multi-sectorial approach.

Those pseudo-academics who lambast the opposition left, right and centre while they stand arms akimbo from the terraces are grossly dishonest. Maybe we need to exonerate them because indeed everything is easier said than done.

This is a new chapter in the African democratisation agenda.

Indeed it is not yet Uhuru!

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