A senior Lecturer at the University of Ghana School of Law, Dr Raymond Atuguba, has said the Kenyan elections is a lesson for African countries not to put greater premium on electronic management of the electoral process.
He argued that it would be extremely difficult for strict laws on electronic transmission to be met in an African country.
Dr Atuguba, a former Executive Secretary to President John Dramani Mahama, said this on the Good Evening Ghana show on Metro TV last Tuesday.
He expressed surprise that Kenya operated under such electoral law looking at the difficulties and unpredictability of technology.
“To rest your entire election so heavily on the vicissitudes of technology is a bit risky to me; if you consider the fact that at the time of the election, 11,000 polling stations did not have 3G and 4G networks with which to transmit the results electronically as required by the election law of 2016 of Kenya, so you can safely say that the election was waiting to be declared null and void,” he said.
Ghana example
Fortunately, he said, in Ghana, C.I 94 based on were the 2016 election was conducted, placed limited emphasis on electronic transmission as it did not require by all means, electronic transmission and transposition of election results.
According to the Senior Law Lecturer, Ghana wised up after the 2012 elections and made some changes to C.I. 75 such that if electronic verification did not work at the polling stations, a manual process was in place for verification of voters.
Supreme Courts must remain so
Delving further into legalities, Dr Atuguba said he was in love with the ruling of one of the lady judges on the Kenya Supreme Court who dissented on the election petition.
He quoted the lady judge as saying: "At the heart of democracy are the people, whose will constitute the stand of governance we have chosen as a country. This (election) was an exercise that was hailed by many regional and international observers as largely free, fair, credible and peaceful. That duty stands sacred and is only to be upset if there is any compelling reason to do so."
Dr Atuguba said: “This is the best ever espouse of the legal test for deciding elections.”
He stressed the need for Supreme Courts all over the world not to behave like the lower courts.
“At the High Court and Court of Appeal you can get away with strict legal rules. At the Supreme Court, the test is whether or not the electoral rules had been observed, the test is whether there has been a credible election such that the outcome portrays the will of the people. If that test is met, you don't invalidate,” he said.
The law lecturer said the Kenya Supreme Court was behaving as if it was a High Court or a Court of Appeal and added that “That's not what Supreme Courts do.”
Complicated situation
Making reference to the ruling of the Kenya Supreme Court, Dr Atuguba said the court stated that President Uhuru Kenyatt did nothing wrong in the elections and the Electoral Commission did not also violate the law out of malice.
But he posited that the Supreme Court was putting Kenya into a complicated situation looking at the billions of dollars spent on the elections and billions more that needed to be acquired to re-run the election.
“The Supreme Court might be leading Kenya slowly into constitutional crisis,” he stated
Other lessons
Touching on other lessons to be learnt from the Kenyan situation, Dr Atuguba said it was important for African politicians to know that if they stole an election, they could easily be declared losers.
“Kenya has shown the way. This is the first time we have seen an African country telling a sitting President get off because you didn't win the election. The first lesson for politicians is that if you steal an election, you could easily be declared the loser,” he said
The second lesson, he indicated, was for Africa to try and conduct its governance discussions and decision-making having in view political, technical and governance considerations.
“What the Supreme Court should do is to take a view of all these argumentation at the three levels rather than concentrate on one level and give practical solutions that do not lead the country into crisis,” he said.
On the criticisms against former President John Dramani Mahama and other international observers who declared the elections free and fair, Dr Atuguba disagreed with the critics, saying for international observers, what they looked for are opportunity to come out and vote without fear, unimpeded registration process, no inference with voting, and reasonable counting process .
He was confident that Mr Kenyatta would win the re-run going by the results and going by the reasons given for annulling the results.
Source: Daily Graphic
Disclaimer: Opinions expressed here are those of the writers and do not reflect those of Peacefmonline.com. Peacefmonline.com accepts no responsibility legal or otherwise for their accuracy of content. Please report any inappropriate content to us, and we will evaluate it as a matter of priority. |
Please tell that lesson to your brother at the SC. He lacked the balls to rule in favour of truth and preferred to satisfy his stomach than satisfy Ghana. What did he mean by "the courts, like our counterparts in Africa do not invalidate a sitting president"? Now he should bow his head in shame and all his family.
AFRICA ELECTIONS HAD BEEN RIGGED MOST OF THE TIME WITHOUT BEING ADEQUATELY CHALLENGED. WITH THE INTRODUCTION OF ELECTRONIC SYSTEM IT HAS BECOME POSSIBLE TO CHALLENGE RIGGED ELECTIONS. GHANA CHALLENGED 2012 ELECTIONS. IT WAS FIRST ATTEMPT OF ITS KIND. THOUGHT THE OPPOSITION WAS NOT SUCCESSFUL IN THE CHALLENGE IT HELPED TO REVEAL THE LOOPHOLES IN THE SYSTEM AND THE WEAKNESS OF THE JUDICIALLY. A GREAT LESSONS FROM THE 2012 ELECTION CHALLENGE HELPED 2016 ELECTIONS TO BE BETTER MANAGED FOR OPPOSITION TO WIN. IN ANOTHER FRONT IT HAS HELPED KENYAN ELECTION TO BE PROPERLY CHALLENGED FOR A RIGGED ELECTION TO BE ANNULLED. ELECTRONIC ELECTION IS GOOD FOR AFRICA. THE LOOPHOLES IN THE SYSTEM MUST THEREFORE BE CORRECTED AS FOUND IN OTHER COUNTRIES IN THE CONTINENT TO WEED OUT ELECTORAL FRAUD
Contradiction - Atuguba appears to be praising the Kenyan SC on one hand and asking other countries to learn lessons from that and on the other hand chastising the SC for behaving like a lower court for observing the law strictly.
where did you get your doctor? you did not seemed to understand what you are saying. let us inspect your degree
is this doctor real? i can not believe what i am hearing. did you say because of money we should give the ruling to those who stole? no. no. no. this mischief or ignorance is not acceptable. wise up, sir and do not fail students who could think better than what you have just espouse.
Strange. I thought this was a staunch believer in Snr Atuguba doctrine that once people have voted no court can cancel whatever results that are declared.
I am really amazed at Atuguba's line of discussion and his level of confidence that Kenyatta will be winning the elections to be conducted in Kenya within 60 days. One thing worth pointing out is that people who upholds the tenets of democracy support the decision of the Kenyan Supreme Court because justice ought to be seen to be supreme even in the face of lack of money. Is Atuguba trying to tell the whole world that because of the cost of running the elections again the Supreme Court should just turn a blind eye to such a broad day robbery and injustices in the Kenyan elections? It's just so absurd that Atuguba, someone who is a lawyer and supposed to uphold the tenets of democracy and ensure that injustices are not allowed to gain any seat in societies would be propounding such shameful ideas. I think his line of discussion/argument is so shameful and he should spare our ears from such empty and baseless things he is talking about. Atuguba has confirmed that NDC and the EC of Ghana led by Afari Gyan rigged 2012 elections and they further corrupted majority of the Supreme Court judges who sat on the 2013 election petition in Ghana for them to rule in their favour. Atuguba should just learn to be honest and stop disturbing all of us with his skewed and corrupt analysis. I am really appalled by his utterance. He is just a shameful lawyer in my opinion. He also confirms the notion of most people that NDC as a party is full of crooks who only know how to create, loot and share Ghana’s resources.
But he posited that the Supreme Court was putting Kenya into a complicated situation looking at the billions of dollars spent on the elections and billions more that needed to be acquired to re-run the election. From the above Atugubah want us to think about him that BECAUSE OF MONEY, THE ELECTION SHOULD NOT HAVE BEEN ANNULLED. If you steeal election and caught, it will be annulled. Why that EVERY Member of NDC only think about cheaating in any thing.
See the mindset of Atuguba? For him and his NDC, anything that will eliminate fraud is not yet rife for Africa. The only thing that they are ready to do effectively is to CREATE, LOOT AND SHARE! Incompetent bunch of looters!
Chai,i thought it was justice Atuguba asking us to learn lessons from the Kenyan elections,simply put the lessons to learn from the Kenyan elections is that, in Kenya the law is working, the law care less whether you are an incumbent or not,in Ghana some seasoned lawyers who have been in practice for 50 years did not understand what the election petition ruling in Ghana was all about,may be Ghana's supreme court judges will have to go to Kenya to learn from their colleagues how they are able to tell so called powerful men the truth in their face,in Ghana truth is a scarce commodity when it comes to so called powerful/big men in society.To the Kenyan judges we say "Tuaso"