On 1 September, 2017, the Supreme
Court of Kenya handed down a judgment that rendered the presidential poll in that
country null and void. Under Kenyan electoral law, the electorate goes back to
the poll in 60 days’ time – on 17 October, 2017 – to, yet again, elect a State
President. The decision of the Supreme Court of Kenya – led by Chief Justice
and President of the Court, David Kenani Maraga – has been hailed by
commentators as unprecedented on the African continent. I have been made aware of
the fact that there are three other instances in recent memory where a
presidential poll has been annulled by the courts: Ukraine in 2004, the
Maldives in 2014, and Austria in 2016. Otherwise, the annulment of a
presidential poll by a court has been unheard of. This demonstrates how tsunami-sque the decision in Kenya is.
The decision not only emboldens the independence of the Judiciary but also reinforces
the promise of the rule of law globally and, more importantly, on the African
continent. Apart from the ‘veiled threat’ from Mweshimiwa Rais Uhuru Kenyatta to ‘deal with’ the judges, the ‘murmurings’
from Kenya are that the decision of the Supreme Court will be respected to the
last full stop.
The decision in Kenya has led to
parallels being drawn with electoral law frameworks the world over. Indeed,
there has been animated debate in Malawi as to what the Malawi courts ought to
do if they were faced with a similar scenario to the one in Kenya. I would like
us to take several steps back – steps going back some seven years – to
appreciate the context of the Maraga Court decision. Kenya adopted a new
constitution in 2010. The Kenyan Constitution of 2010 was adopted in the wake of
post-election violence in 2007 where some 1,200 people or so lost their lives.
The Kenyan Constitution, in relation to election disputes, allows for the
determination of election petitions based on irregularity or other matter. The
Kenyan Constitution itself spells out – in very clear language – that no
President elect can be sworn into office if an election petition has been filed
with the Supreme Court (of Kenya) in accordance with Kenyan electoral law. The
Kenyan Constitution and electoral law respectively provide further that an
election petition regarding a presidential poll shall be filed within seven
days from the date of the declaration of a winner of a presidential poll. The
Supreme Court shall then hear and determine the election petition within
fourteen days from the date of the filing of the election petition with the
Court. The decision of the Supreme Court in such matters is final.
Under Malawi’s electoral law, the
Electoral Commission must publish in the Gazette
and by radio broadcast and in at least one issue of a newspaper in general
circulation in Malawi the national result of an election within eight days from
the last polling day. The Malawian Constitution states that a President elect
shall be sworn into office within thirty days of being elected. The Malawian
Constitution or attendant electoral law does not prioritise the determination
of election petitions – where they arise – before a President elect can be
sworn into office. There is nothing under Malawi law that stops a changu-pamalo swearing into office of a
President elect. And true to form, we have had, in this country, three
instances of swearing-in ceremonies of a President elect conducted with some
remarkable speed.
The Law Commission has just
concluded the review of electoral laws in this country. The Commission, among others,
considered the ‘immediacy’ and ‘speed’ of the swearing into office of a
President elect. The Commission noted that the changu-pamalo swearing into office of a President elect renders an
election petition, if one is filed, farcical. Having made this observation,
proposals of the Commission do not, in fact, prevent the swearing into office
of a President elect even in the face of an election petition challenging the
victory of such President elect.
The integrity and legitimacy of
an electoral process is assured if all concerns and disputes are fully resolved
before a President elect is sworn into office. I will not – even one bit – take
away the integrity and professionalism of the Maraga Court in Kenya. I hasten
to add, however, that the provisions under Kenyan law regarding the filing and
determination of a petition against a presidential poll, and how and when you
swear into office a President elect made the task of the Maraga Court less
heavy. The ‘breather’ provisions regulating the determination of election
disputes and the procedure on swearing into office of a President elect must be
re-visited under Malawi electoral law. We may want to face Kenya for lessons on
the matter.
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