THE KENYA SUPREME COURT DECISION WILL HAVE DIRE CONSEQUENCES

THE KENYA SUPREME COURT DECISION WILL HAVE DIRE CONSEQUENCES The Supreme Court of Kenya has set precedent on the African Continent by overturning a presidential election result throwing the hitherto conservative jurisprudence in disarray. But the justices may have rushed to overturn the results which might lead to dire consequences for the East African nation. In the first place , all parties agree that the elections are determined at the polling stations . And it seems there were no problems at the polling stations . The petitioners’ case just like in the Mbabazi’s case centered around the transmission of the results from the polling stations to the tally center in Nairobi. If that was the focus of the dispute , the justices should then have recalled the results from the polling stations as contained in the tally sheets to verify , isolate those cases where there is a mismatch , and then reach a conclusion as to whether such inconsistencies affected the total overall figure in a substantial manner . Unfortunately the Court did not evaluate that evidence in the tally sheets, they didn't verify and instead rushed to play to the galley and nullified the same. The Courts decision then looked more of a political than a legal one . The court wanted to set a precedent as being the first to do that and get the rave reviews which they are now enjoying at a huge cost that awaits the country . Many jurisdictions not only in Africa but America , South Africa, Nigeria, Canada , India among other , have been very reluctant to overturn presidential elections due to the financial , legal and social political ramifications not forgetting the security and stability of a state . Now, the Kenyan decision has many both positive and negative ramifications but will highlight a few negatives ones . Let me start with the legal ones , the courts are going to.be flooded by a multitude of petitions from the local governors and other constituent elections . Because any smart lawyer will argue that if the Supreme Court has declared that the presidential elections lacked integrity and all, how then can the local elections be clean when.it was the same Electoral Commission that conducted those elections as well. Secondly, basing on the judgment , the commission should be disbanded and the opposition has already filed a suit to that effect. That suit will be appealed up to the Supreme Court and when it is successful , then the electoral commission will have to be disbanded and a new one appointed with new electoral officials across the country . Question then is will the country be in position to hold fresh elections in 60 days as required by law ? Again the answer to that question might be in the negative . That will then mean the parliament will have to amend the constitution to enlarge time . So we don’t see Kenyans getting over this till the new year meanwhile, they won't have an effective government for that period because Uhuru is now a lame duck as we all know it . Lastly, we wait to see the guidelines that will be set by court in its detailed judgment that will have to.be followed to ensure that the next results from the next elections will be accepted by all parties. This is because there cannot be a flawless election anywhere in the world that's why the substantially test was developed and adopted in many jurisdictions. But you can only apply that test if the court is willing to verify the transmitted results . In the case of Kenya , court didn't want to do it because of the time and resources involved and instead took the easy path of throwing it back to the voters and the cost is going to.be much more than if the court had endured to verify the results at the polling stations because that's where the winner is determined and not in the process of transmission .