Kenya’s success, Zambia’s failure: courts, constitutions and elections

Kenya Supreme Court

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The recent invalidation of the re-election of Uhuru Kenyatta as President of Kenya by the country’s Supreme Court is a refreshing development that provides a stark and painful reminder of what Zambia’s democracy lacks today: a robust and independent judiciary that is not susceptible to political and financial interests. It is a landmark decision that suggests that democracy is not being strangled everywhere in Africa and whose ripples should reinvigorate our own struggles for a truly functional democracy, a genuinely independent judiciary, and the achievement of a just and fair society. It is a stunning example of what is possible when the judiciary is unafraid to exercise its constitutional mandate even in the face of executive pressure, outright intimidation and obstruction from the ruling political elites.

If we place our democratic backslides in a much wider context – one that has seen the critical free press stifled and eventually shut, a number of non-state actors such as trade unions and religious organisations co-opted or muted, free speech effectively suppressed, leading opposition figures incarcerated on trumped up charges, and nearly 50 opposition lawmakers suspended from Parliament – we would realise that the root cause of Zambia’s post-election tension is the country’s inept democratic institutions, particularly the Electoral Commission of Zambia and the judiciary. If the ECZ’s management of the 11 August election was a shambles that set the stage for a disputed result, the judiciary’s handling of the presidential election petition was simply a deliberate and orchestrated scam. In our case, the judiciary, like other supposedly independent political institutions, notably the police, has been harnessed by the ruling authorities and used to support and sustain their authoritarian tendencies.

The ruling by Kenya’s Supreme Court also exposes the pointlessness of election observers. As was the case in Zambia’s 2016 elections, both local and international election observers endorsed the result of Kenya’s elections as free and fair when it is clear that there were serious flaws in the presidential poll. What is the point of election observation missions? What do they really do? Under what circumstances do election observers have any useful role to play in African democracy if they are unable to spot what Kenya’s judges clearly could? The verdict from Kenya’s Supreme Court should be politically awkward for President Edgar Lungu, who has repeatedly sought to dispel opposition claims that his victory was illegitimate and fraudulent by constantly invoking election observers’ endorsement of his own election, as though their verdict was sacrosanct. What we can learn from Kenya is that election observers can clearly be fooled without undue difficulty and that it is possible for them to validate a deeply flawed election and consequently derail democracy. The other telling aspect is that Kenya’s fraudulent election results tallied with NGO election forecasts. It would appear that these forecast are now being used as a guide to plausibly manipulate election outcomes.

The landmark verdict further underscores the need for carefully considered and well reasoned judicial reforms in Zambia. It is worth noting that the 2010 constitutional changes in Kenya were accompanied by a thorough reorganisation of the whole judiciary. Kenyans appear to have understood that enacting a new constitution is pointless if the existing judiciary, which includes corrupt and compromised judges, is retained in its entirety to oversee the implementation of the new national law. As a result, they embarked on the creation of a new judiciary, preceded by a ruthlessly transparent public vetting of the country’s judges. The outcome of the presidential petition is a product of a continuing process set in motion in 2010.

In contrast, Zambia’s constitutional amendments have not resulted in any judicial changes. The appalling and sickening conduct of some of our Concourt judges during the presidential election petition last year shows that it is not enough to amend our national law, as we did in January 2016. Any constitutional changes should be followed by judicial reforms, which should include public vetting of judges, to weed out the corrupt and partisan elements who are undermining the integrity of our justice system. A new constitution should be accompanied by a changed political culture. The simple piece of paper that is a constitution is given life by the actions of its citizens including those in positions of authority such as judicial officers who are mandated to interpret it. Constitutions across Africa guarantee judicial independence. In practice, however, independent actions from senior judges are rare. This makes what has happened in Kenya a remarkable and welcome development. Zambia’s march towards a truly independent judiciary remains limited, largely because judges refrain from making politically unpopular decisions.

Kenya’s Supreme Court nullified the country’s presidential election on grounds that it was not organised in accordance with the constitution. Constitutional discrepancies around Zambia’s 2016 presidential election were confirmed by the ConCourt’s ruling on the eve of the election that President Lungu’s decision to retain his Cabinet after the dissolution of Parliament was unconstitutional. The ConCourt’s refusal to hear the petition against Lungu’s election reinforces claims by the opposition that there was collusion between judicial officers and ruling party functionaries as both sought to avoid awkward constitutional arguments in relation to the election, such as how certain provisions of the constitution or other laws relating to presidential elections were not complied with. In short, Zambia’s 2016 poll bears striking similarities to the current situation in Kenya. The missing ingredient in our case was an effective and impartial judiciary that is unafraid of asserting its constitutional power and ruling against the government and the ruling party.

The elation brought about by Kenya’s Supreme Court not only in Kenya but also across Africa shows the missed opportunity for Zambia’s judiciary. As a country, we had an incredible opportunity to restate the law on presidential election petitions and set a landmark example for others elsewhere to emulate. Unfortunately, just as we copied many provisions from Kenya’s 2010 constitution, it appears we will have to copy from Kenya again when it comes to how to properly adjudicate a presidential election petition. Our constitutional court judges missed a once-in-a-lifetime opportunity to secure their place on the right side of history. Time will forever say ‘these are the judges who, in a disgraceful and shameless conduct, presided over the 2016 presidential election petition and whose flip-flopping scarred our country’s reputation in the eyes of many’. I hope our Concourt judges are, in the wake of this landmark ruling by Kenya’s Supreme Court, hanging their collective heads in shame. It is sad to see how our country, once regarded as a beacon of democracy in Africa, has slipped back into quasi-authoritarian rule and how the judiciary continues to abet this tragic slide into the abyss.

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About Sishuwa Sishuwa

Sishuwa Sishuwa is the last Zambian nationalist. He is obsessed with all things Zambian, particularly politics and history which he teaches when UNZA is not closed. Sishuwa is a cadre of Nkana Football Club and has a PhD in History from Oxford.