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.
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