Kenya's annulled election is a lesson in assuring electoral justice
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"Every time we do something a judge comes out and places an injunction. It can't go on like this. … There is a problem and we must fix it. … I think those robes they wear make them think that they are more-clever than the rest of us.”

That is not a direct quote from President Donald TrumpDonald John TrumpSunday shows preview: Trump sells U.N. reorganizing and Kavanaugh allegations dominate Ex-Trump staffer out at CNN amid “false and defamatory accusations” Democrats opposed to Pelosi lack challenger to topple her MORE, referring to the successive federal court injunctions on his twice-revised Executive Order imposing a travel ban on six primarily-Muslim nations.

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Those are the words of Kenyan President Uhuru Kenyatta, lashing out at the country’s Supreme Court for declaring his August 8 re-election victory over opposition leader Raila Odinga invalid and null and void, due to widespread irregularities in the transmission of results. The court ordered that a new election be held on October 17.

For Trump, the intervention of federal judges blocking his executive order was a body blow to his presidential authority. But, in the big scheme of things, it was just another day of checks and balances, in our 241-year old democracy.

However, in Kenya, the order of the country’s high court was historic, a judicial precedent, and the first time in the continent’s history that a court has overturned a presidential election. And the decision was respected, even if reluctantly.

Whether President Kenyatta’s reelection will be overturned in a fresh vote remains to be seen, as he tallied more than a million-vote margin, the country still must contend with an Independent Electoral and Boundaries Commission (IEBC) which has lost public trust, and accountability after the pre-election assassination of Christopher Chege Msando, supervisor of the electronic voting system.

Notwithstanding the challenges that lie ahead, Kenya’s judiciary has taken an irreversible step forward in institutionalizing democracy. Further confirmation that Africa’s democratic character is consolidating.

Critics have been merciless since the Court’s annulment of the Kenyan election, blaming the international observers, including the Carter Center delegation chaired by former U.S. Secretary of State John KerryJohn Forbes KerryRubio wants DOJ to find out if Kerry broke law by meeting with Iranians Time for sunshine on Trump-Russia investigation Pompeo doubles down on criticism of Kerry: The Iran deal failed, 'let it go' MORE, and the African Union, led by former South African President Thabo Mbeki, for having rushed to judgement to certify the Kenyan vote. Some calling it a “profound challenge to the value of election observation.

But discrediting international observation benefits no one, and certainly not in Africa. Despite their shortcomings, these bodies play an essential role as a non-partisan, credible voice on the process offering added scrutiny and often serving as the preferred platform by contesting parties for dispute resolution. Because of their work, the world is watching.

We all need to learn from the Kenyan example, the western donors, the international observer community, and the global media that assembles in masse for these political milestones. Here are my takeaways.

First, we need to assume our cue from the eight Kenyan Supreme Court judges. Through their ruling, they have asserted that the integrity of a process matters, even if uncertainty follows. They have resisted the temptation to opt for political stability over electoral justice, and they have sent a signal to the continent’s leaders that the power of the executive is not absolute.

The reaction around Nairobi validates this assertion, with many celebrating what they saw as a victory for the country’s institutions, and for Kenya’s democracy, favoring a triumph for transparency and due process of law over the win of a particular candidate. One Kenyatta supporter said, “We are one step ahead of others in Africa and we are proud of it!”

Second, we must look at what is unfolding on the ground, in the democratic political space, what solutions can be enacted to protect the integrity of an electoral process when trust in the system is lacking. And here, West Africa is at the forefront.

Does necessity drive invention? In this case, yes. Just ask West African opposition political parties who have learned, the hard way, that you can run the best campaign and win the popular vote only to lose during a flawed electoral process. As such, they are no longer leaving their fate to others, but setting up independent ballot verification.

We saw this phenomena in 2015 during Nigeria’s general elections, when now-President Muhammadu Buhari’s All Progressive Congress (APC) conducted its own independent vote count to serve as a check on the country’s historically compromised National Electoral Commission (NEC). The APC data showing an unbeatable opposition margin was a factor in pressuring the sitting president Goodluck Jonathan to concede defeat.

And ,in December of 2016, the then-main opposition party in Ghana, New Patriotic Party (NPP), took the Nigerian example one step further developing proprietary software and a logistical process to chase the ballot’s chain of custody from approximately 29,000 polling stations, through the district tabulation centers, and to the national counting center. The NPP methodology was subsequently documented by Africa Confidential, How Ghana’s opposition won the elections data duel.

Odinga’s National Super Alliance (NASA) attempted to develop a ballot review process, inviting the NPP’s party chairman, Peter Mac Manu, to provide technical assistance, but Mac Manu was prevented from entering the country by Kenyan authorities.

It should be noted that independent political party verification is not a panacea, and it can be abused and mishandled, but when done right, the effort can diminish the threat of violence as party leaders are able to assure their partisans that their votes will count.

Africa’s civil society has also innovated by necessity, wary that corrupted elections will diminish the faith of the population in representative democracy. Here again, Ghana is at the forefront.

In the same highly contested 2016 election, the Coalition of Domestic Election Observers (CODEO), with the support of the US Agency for International Development (USAID) conducted a Parallel Vote Tabulation (PVT), taking a random sampling of 7,000 polling stations to check an Electoral Commission whose public trust numbers polled less than 40 percent. Their outcome was sealed and held until after the Electoral Commission’s announcement, assuring a tense electorate the result would be free and fair.

The accuracy of the CODEO PVT, as well as the NPP independent count, was within <.48 percent of the official published results. I wonder what a difference these systems would have made in Kenya.

So let’s not throw the proverbial baby out with the bathwater. We should celebrate this judicial milestone in Kenya’s 36-year multiparty democracy and the hope it signals that Africa’s judiciary is coming of age. Let’s consider applying the examples that West Africa’s political parties and civil societies have executed with success and recognize the limitation of high-level, short-lived election observations, but their value nonetheless.  

And let’s applaud the independence of the judiciary, and the courage of the men and women of the courts in the US, Kenya, Africa and around the world, who put their constitutional oath of office above all else.  

Riva Levinson is president and CEO of KRL International LLC, a D.C.-based consultancy that works in the world’s emerging markets, and author of "Choosing the Hero: My Improbable Journey and the Rise of Africa's First Woman President" (Kiwai Media, June 2016), Silver Medal winner Independent Book Publishers Award, Finalist, Foreword Reviews INDIES ‘Book of the Year’ Awards. Follow her on Twitter @RivaLevinson.


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