Tuesday, March 4, 2008

Have the masses lost trust in the courts?

Have the masses lost trust in the courts?
Until Thursday last week when the two protagonists President Mwai Kibaki and Orange Democratic Movement (ODM) leader Raila Odinga penned a power sharing agreement, the December 2007 Kenya general elections had meant one thing and one thing only to most Ugandans: ethnic political bloodshed.

Just over two months into the mayhem even the most liberal estimates put the Kenya death toll at 1,000 lives. Machete wielding mobs from various tribes turned churches into scenes of mass murder. And all this suffering caused by self centered politicians who care less about the consequences of their illegal actions.

Among the items on the power sharing agenda hammered out by one of Africa’s distinguished diplomats, Dr Kofi Annan, is the establishment of a truth and reconciliation commission, a process aimed at healing wounds among sharply divided Kenyans.

But who is responsible for the hundreds of innocent lives lost in the political turmoil? Is it Raila Odinga or Mwai Kivaki? Both men take an equal share of the blame; one for failure to conduct an election in an honest manner, the other for inciting the public to get involved in ‘mass action’ basically taking the law in one’s own hands.

The Kenya situation is also unique- in a sense that unlike Uganda and recently Nigeria, disputes arising due to presidential election fraud have been or will be resolved by political means, regional and international diplomacy rather than judicial principles of law. The question then is; have our judicial mechanisms been rendered redundant in the political arena?

Is the Kenyan situation setting a precedent to the rest of the East African community that political differences/disputes especially the presidential ones, will be settled by fist fights on the streets and not in the court room?

Perhaps the answers to these questions can be found in the words of one of our celebrated Supreme Court judges and accomplished legal scholar, Justice George W. Kanyeihamba who stated: “the overriding constitutional dogma in this country is that constitutionalism and the 1995 constitution of Uganda are the Alpha and Omega of everything that is orderly, legitimate , legal and decent.

Anything else that pretends to be higher in this land must be shot down at once by this court (Supreme Court) using the most powerful legal missiles at its disposal.”

Justice Kanyeihamba’s words are contained in the preamble to his dissenting decision in the presidential election petition No. 1 of 2006 between Col. Dr Besigye Kizza (petitioner) and The Electoral Commission, Yoweri Kaguta Museveni (respondents).

In his judgment, Justice Kanyeihamba , alluded to some issues that if not properly handled can lead politicians and their supporters to opt for other means (in most cases violence) to resolve political differences. This is the situation pertaining in Kenya- where the opposition ruled out the possibility of taking their case to court outright.

In his decision Justice Kanyeihamba emphasised the fact that an inquiry into a presidential election must be conducted, concluded and its findings and reasons given expeditiously. The reason why the Kenya opposition opted for ‘mass action’ instead of running to court to seek a remedy is because they did not have faith in their country’s judicial system and may be the politically partisan officers that run it.

In the two presidential petitions determined by the Supreme Court of Uganda the fundamental issue of contention has been whether alleged election malpractices and failure by the Electoral Commission to conduct an election in accordance with the law affect the final results in a substantial manner.

For instance in the 2006 presidential election petition, the Supreme Court found that there was non-compliance with the provisions of the constitution, the Presidential Elections Act and Electoral Commission Act.

That voters were disenfranchised when their names were illegally deleted from the voters register and thus denied the right to vote. That there were irregularities in counting and tallying of the results, that the principle of free and fair elections was compromised by bribery, intimidation and violence.

Court further found by unanimous decision that the principles of equal suffrage, transparency and secrecy were infringed by multiple voting , vote stuffing and incorrect methods of ascertaining the results.

However, by a majority of four to three , the justices found that it was not proved to the satisfaction of the court that the above listed illegalities affected the results in a substantial manner to warrant fresh elections. Justice Kanyeihamba was one of the three dissenting justices who upheld the petition and nullified the elec tion.

Next week: We shall examine Justice Kanyeihamba’s reasons for his dissent and what it means for our democracy.

The writer is a journalist and advocate

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