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Kenya’s High Court Ruling, A Litmus Test For Liberia’s Historic Election

Kenya’s High Court Ruling, A Litmus Test For Liberia’s Historic Election

A NEW PRECEDENCE HAS BEEN set in Africa’s emerging democracy – one that was once thought was impossible on this continent – the nullifying of the results of Kenya’s presidential election result.

MILLIONS OF KENYANS BORE THE PATIENCE of standing in long queues outside polling stations across the country to vote in presidential and local elections on August 8. Previous elections in this country have often been suspected of rigging, some of which led to violent post elections protest. This time, however, the US and Kenya’s other donors had invested $24 million in an electronic vote-tallying system designed to prevent interference.

THE RESULTS WERE ANNOUNCED ON AUGUST 11 with President Uhuru Kenyatta winning another five-year term with over 54% of the vote. Former Ghanaian President Mr. John Dramani Mahama leading a team of observers from the African Union and former U.S. Secretary of State John Kerry who led the US-based Carter Cater Mission as well as the European Union unanimously declared the process and free, fair and transparent.

BUT THE OPPOSITION NATIONAL SUPER ALLIANCE PARTY (NASA) didn’t trust the Observers’ observation. Mr. Raila Odinga termed the election a sham as soon as the results began coming in. Chairman of the Kenyan Independent Electoral and Boundaries Commission (IEBC) Wanyonyi Wafula Chebukati on August 11 declared for incumbent President Uhuru Kenyatta to continue another 5-year term despite the protest from the opposition.

ODINGA FILED A PETITION AT THE SUPREME COURT on August 18, asking the court to annul the polls results and order a re-vote. The petition claims, among other things, that nearly half of all votes cast had been tampered with; that NASA’s agents, who were entitled by law to observe the voting and counting, had been thrown out of polling stations in Kenyatta strongholds; and that secret, unofficial polling stations had transmitted fake votes. And that is what the court has done precisely. The results have been annulled a re-election ordered.

ON AUGUST 29, THE COURT REGISTRAR REPORTED that some 5 million votes, enough to affect the outcome, were not verified. Under the Kenyan constitution, no one is sworn in as President during the pendency of the petition.  The petition was decided in 14 days and has to be decided by the full bench made up of only seven judges including the Chief Justice. Under the rules, unconstitutional means unconstitutional. Because a previous election (2007) plunged the country into civil war, Kenyans consider an election as a process not an event.

OPPOSITION LEADER RAILA ODINGA AND HIS NASA after providing incontrovertible evidence that the whole election was rigged has been able to get the Supreme Court to nullify the August 8 re-election of Uhuru Kenyatta. The court has ordered a re-run within 60 days. The Kenyan Supreme Court agrees with the petitioner that the presidential election was not conducted in accordance with the constitution and that there were widespread irregularities.

WE SEE THE KENYAN SUPREME COURT’S DECISION as a historic move that is going to be a guiding post for many countries in Africa when they face identical election rigging situations.

IN LIBERIA, VETERAN LAWYER CLLR. TIAWON GONGLOE, when asked whether similar turn of events would be possible in the aftermath of the upcoming elections, particularly in the wake of a recent controversial ruling by the Liberian Supreme Court, said: “Well, one has to just be hopeful - that’s all I can say.”

IN A LANDMARK RULING REVERSAL IN MAY, Liberia’s Supreme Court reversed a decision by the National Elections Commission to reject Mr. Harrison Karnwea as running mate of Liberty Party's presidential candidate Cllr. Charles Walker Brumskine, noting that he was in substantial compliance. “He resigned after the Code of Conduct was declared constitutional. His conduct of not resigning two years earlier is in violation, we don’t believe that the action is egregious in nature.”

THE COURT IN AN EARLIER RULING HELD that rejected Montserrado County District 15 aspirant, Abu B. Kamara flagrantly disrespected the Supreme Court and violated the Code of Conduct and as such it cannot overturn the National Elections Commission (NEC) decision to bar him from contesting in the October elections.

READING THE BENCH’S OPINION ON KAMARA’S petition for a Writ of Prohibition on the NEC, Chief Justice Francis S. Korkpor said the bench sought to determine whether the Code of Conduct (CoC) was applicable to him (Kamara); whether the amendment by the Legislature was in violation of the ECOWAS Protocol; whether he was given due process and whether the prohibition should be granted the prohibition.

ACCORDING TO THE SUPREME COURT, THE LACK OF MENTION of the position of assistant minister in Section 5.1 and 5.2 in the CoC does not exempt persons holding position from abiding by the CoC, as Article 56A of the Constitution named who the President appoints.

  1. KAMARA, AN ASSISTANT MINISTER FOR ADMINISTRATION at the Ministry of Post and Telecommunications, did not resign as demanded of appointed officials before filing his credentials before the NEC.

DRAWING CONTRAST FROM THE UNPRECEDENTED RULING IN KENYA, Cllr. Gongloe who disagreed with the Court ruling in Liberia told FrontPageAfrica, he pays homage to the Kenyan Supreme Court for overturning an election in which the ruling party won.

“I DISAGREED WITH THE LAST DECISION OF THE (LIBERIA) Supreme Court. But hats off to the Court of Kenya because they took a decision to overturn an election in which the current president is running. I think it is a landmark case for not just Africa but the rest of the world. This is very unprecedented as we have never seen anything like this in our lifetime. Such a decision could not have been made during the reign of Daniel Arab Moi. So, it has put Kenya on a different level now – it all hinges on the strength of the judiciary."

IN LIBERIA, THE COURT IS CURRENTLY EMBROILED in at least three major election related cases – Amos Seibo of District #1 (Appellant) versus the Nomination Committee of the NEC (Appellee)  in the action for Rejection of Nomination Application; S. Garyah Karmo of District #1, Bomi County (Appellant) versus Hon. Edwin Melvin Snowe of District #6, Montserrado County (Appellee) in the action for Objection to Registration; and Edwin Melvin Snowe of District #6 & Unity Party (Appellants) versus Hon. Sando D. Johnson of Bomi County in the action for Domicile violation. Rep. Snowe is currently embroiled in a battle at the high court over his quest to represent the Senjeh District, Bomi County, while still the current Representative from Montserrado County, District No. 6.

SLAWON, AN ASPIRANT FOR NIMBA COUNTY DISTRICT #9, running on the ticket of the Liberty Party, for his part was notified by NEC that his candidacy has been revoked for violating the Code of Conduct (CoC) by not resigning his position as director general of the National Commission on Higher Education before launching his bid. All three cases are on the Supreme Court docket.

THE ONGOING WRANGLE AT THE HIGH COURT is reminiscent of the December 2014  Electoral District #7 in Bong County race between  independent candidate Dr. Henrique Tokpa against the National Elections Commission and the candidate of the National Patriotic Party (NPP), Jewel Howard Taylor in the 2014 special senatorial elections.

AT THE END OF THOSE ELECTIONS, THE SUPREME COURT mandated the National Election Commission (NEC) to do an election re-run in three polling places in District #7 - Sanoyea Market, Yarbayeh Public School and Bletenda Palava Hut, respectively, in Lower Bong County within 60 days.  The Court’s decision was prompted by a complaint filed by Tokpa, second place winner in the December 20, 2014 special senatorial election on grounds that there were procedural irregularities leading to his defeat by Senator Jewel Howard-Taylor.

FOLLOWING ADJUSTMENTS FROM BY THE SUPREME COURT, the election results showed Howard-Taylor amassing 13,255 votes while Tokpa had 11,672 votes. In his complaint to the local office of the NEC headed by Magistrate Joseph Jallah, Tokpa said there were unidentified voters allowed to vote, over statement of total votes cast in the area and election boxes were left open beyond the prescribed period.

NOT ACCEPTING THE RULING OF BOTH JALLAH AND THE NEC, the case was taken to the Supreme Court which, following thorough examination, ruled for a re-run of election at the three protested areas based on facts discovered in Tokpa’s complaint. Tokpa eventually withdrew his complaint because it was alleged that President asked he dropped his case against Jewel Taylor, as at the time Jewel was a confidante of the President.  In exchange for dropping his case, Tokpa was rewarded post of Minister of Internal Affairs. 

MANY POLITICAL OBSERVERS SEE THE ONGOING build-up of cases before the high court ahead of this year’s elections as even more reasons for concerns. With more than 20 candidates contesting the presidency, competing egos and a wave of social media anger storm leading into the elections may be writings on the wall of what could be looming ahead. Liberia’s transition from war to peace a litmus test in an election viewed by many as a major gauging point for Liberia’s post-war bourgeoning democracy.

POST-ELECTIONS UNCERTAINTIES ARE NOT UNUSUAL, particularly in Africa where as is the case in Kenya, the economy is often the first to suffer. Investors and stakeholders will no doubt be paying a close eye on how the unfolding developments in Kenya ricochets across the continent where upcoming elections in Sierra Leone and Liberia are being contested.  The development in Kenya must set the pace for the rest of Africa, especially Liberia with our landmark election at hand to remind ourselves that the rule of law is the beauty of democracy.

THE ISSUES THAT THE JUSTICES HAD TO RESOLVE WERE complex and the evidence on hacking and troubled votes was dazzling. This is a courageous decision bound to inspire other countries and help purify the sanctity of the ballot in Africa and we hope when we get to that point by any means, our story shall also be glorious.

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