Kenya’s Supreme Court Has Opened A Pandora’s Box – Andrew Mwenda

The Kenyan Supreme Court is playing with fire. They have not properly thought about the consequences of their decision. The court may have thought it was annulling an election.

Actually what they have done is tantamount to a court overthrowing an elected government – an unprecedented thing. The question is: what injury was the Supreme Court trying to cure. Those who agree with it say: electoral malpractices and irregularities.

Here is the dilemma: when the election is repeated, what guarantee is there that the same irregularities will not be repeated? Second: if the irregularities are repeated and Raila returns to the same court, will they nullify the election again? If they do that, what is the end game? Third and more critically, can the political institutions of Kenya withstand the stress resulting from such nullifications and repeated presidential elections?

Our nations are still young with fragile institutions. Even one election imposes too much stress on the body politic. How about annulling and repeating presidential elections in the same year?

The Supreme Court decision is even more reckless considering that the margin of victory was very big (54% against 44%). More than that, international election observers from the AU, the EU and the US (Carter Center) had said the election was free and fair and had asked the loser to concede. In annulling the election, the Supreme Court has actually disregarded the freely expressed will of the Kenyan people.

Here is my prediction: the supporters of Uhuru and Ruto, both within and outside of the state, are not going to accept to lose. So they are going to be more inclined to use all means to win.

This means that the second election is likely to have more irregularities than the first. The supporters of Raila are now highly energized and will not accept anything except victory. This is a political problem that no legal arguments can resolve. Hence the Supreme Court is veering into dangerous waters and may have put Kenya on a slippery slope.

The most likely outcome of this court decision is not to improve the quality of the election. Instead it will increase the incentive on the incumbent to rig and incentives on the losers not to accept the results. The court lacked foresight to appreciate that the matter before them was more political than legal and has serious ramifications.

If the court had to make an error, it should have done so on the side of caution. What they have done is reckless, an un-calculated risk whose consequences may be to plunge Kenya into chaos. I pray that my predictions do not materialize because future generations of Kenyans will be happy that I was wrong.

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