RELEVANT LESSONS FROM KENYA’S 2017 GENERAL ELECTIONS :Why Raila Odinga’s decision to go to court, is the most salutary positive lesson

Pius Msekwa

RAILA Odinga’s decision to go to court to challenge the results of Kenya’s 2017 presidential elections, was very good news for many of us even non-Kenyans.

That was when Tanzania’s print media informed the public about that welcome decision including ‘The Daily News’ of 17th August, 2017 that had the following as one of its headline news: “NASA to challenge poll results in court”; while ‘The Citizen on the same date, carried the following headline news item: “U-Turn : Beaten presidential contender and opposition leader who had earlier refused to challenge the results in Kenya’s highest court….

Defeated Odinga now to goes to court”; and continued as follows: “Opposition leader Raila Odinga said he would take his claims that Kenya’s Presidential election was rigged to the Supreme Court, after previously refusing to do so and vowed to protest peacefully.”

In my considered opinion, this is the most salutary positive lesson that Tanzania’s political parties, particularly the Civic United Front (CUF), which has always participated in the Zanzibar presidential elections, but has in every case refused to accept the results of such elections, and has also consistently refused to take their complaints to court. Refusal to go to court is precisely what Raila Odinga and his NASA coalition had done initially.

They too had similarly refused to go to court to challenge the results of their August 8th 2017 General Elections; thus causing considerable tension, anxiety, and apprehension in that country. But then came this good (breaking) news, that they had then decided to go to court in order to seek what they considered to be their denied justice.

It is my submission here that this is the positive lesson which the Civic United Front (CUF) can usefully learn from the said Kenya presidential elections. There are many relevant lessons.

There are, of course, many lessons that our country’s relevant institutions could learn from Kenya’s 2017 general elections; particularly those institutions that have duties to perform during national elections.

Specifically, the participating political parties,(both the National and the Zanzibar Electoral Commissions); the law enforcement organs, particularly the Police Force. Some of these lessons are positive, but there are others which are negative, and should therefore be avoided.

The negative ones include the acts of violence, which led to the death of innocent persons; and the initial refusal by NASA to take their complaints to court, while screaming about a hacked electoral management system without revealing how they themselves got into that system.

But there were also many positive lessons to be learnt, such as the big turnout of the registered voters on election day to cast their votes; and the very peaceful manner in which the voting exercise was conducted throughout that country.

Raila Odinga’s, or NASA’s, decision to go to court to challenge the results of that election belongs to this category of positive lessons, and this, in my view, is the most salutary positive lesson, especially for CUF, in the light of that party’s consistent refusal to go to court to challenge the Zanzibar presidential election results which they have always disputed.

The Savimbi ‘theory’ of elections. In this particular context, the word ‘theory’ is used to mean ‘an opinion, or idea, which somebody believes to be true, but which is not proved’.

In my book titled The First Decade of multi-party politics in Tanzania (Nyambari Nyangwine Publishers, Dar es Salaam, 2014); I discussed the general political deficiency which exists in our respective countries, which returned to the multi-party political system at the beginning of the 1990.

I described this particular deficiency as “the lack of the requisite multi-party political culture,” and endeavoured to show how this deficiency has negatively affected our operations of the multi-party political system, plus, as a consequence thereof, having led to the emergence of what I called “the Savimbi theory of elections”, in the following words:- “Because of the absence of the requisite political culture, serious trouble has often been caused in a number of countries when, immediately following a general election, the loosing parties refused to accept the results of the relevant election.

This syndrome of the ‘non-acceptance of election results’ appears to have been invented by one Jonas Savimbi of Angola who, having lost in the presidential election in which he had participated as a candidate, refused to accept the results of that election, even though it had been carefully prepared and conducted under the close supervision of the International community, and had also been certified as having been free and fair.

But upon loosing that election, the said Mr. Savimbi strangely claimed that he had been cheated, that the election was rigged, and that his votes had been stolen. He therefore, declared that he was going back to the bush to fight a guerilla war against the elected President who had defeated him. He also refused to challenge the election results in court.

An anonymous political scientist responded by calling that declaration “the Savimbi theory of elections”, which he mockingly framed as follows: “if you participate in a Presidential election, you must win. If you don’t win, you have been cheated.

Thus, you must refuse to accept the results thereof, and start fighting against the winning party”. Obviously, this is the surest way of creating electoral violence, as well as other breaches of the law.

CUF’s participation in Zanzibar’s presidential elections. Many of our readers are probably aware of CUF’s reactions in relation to the Zanzibar presidential elections in which their candidate had lost.

It all started the first general election which was held in Zanzibar in 1995, following the country’s return to multiparty politics. In that election, CUF presidential candidate lost, whereupon he and his party immediately rejected the election results, claiming that the figures had been manipulated by the Zanzibar Electoral Commission (ZEC) in favour of the winning CCM candidate.

They refused to recognize the legitimacy of the elected President of Zanzibar, and quickly announced their policy of non-cooperation with the newly elected Zanzibar Government.

Additionally, they also boycotted the House of Representatives, by ordering all its elected representatives (both of the Union Parliament and the Zanzibar House of Representatives), not to attend any of the sessions of those Houses.

Furthermore, some of their members went on to engage themselves in other unlawful acts of civil disobedience and of undermining the Zanzibar Government. And on their part, the winning party responded by using state power to fight back, in order to maintain peace.

The Government’s actions produced some very serious negative consequences. For example, a number of CUF members were arrested and charged with the grave offence of treason, thus causing many others to flee to Mombasa in neighbouring Kenya, in order to avoid similar arrests.

The cumulative result of all this was a nasty political impasse which lasted for almost the whole of the fiveyear leadership period, right up to the next following elections in the year 2000.

But what is most relevant to this discussion, is that CUF refused to take their complaints to court, claiming that the courts would not deliver the kind of justice which they wanted. Then came the 2000 general elections which, unfortunately, produced exactly the same disputed results.

The CUF presidential candidate again lost, and he again refused to accept the election results, and repeated the same boycott strategies of the previous period.

But in addition, CUF this time organized a mammoth street demonstration in Pemba in January 2001, which however turned violent, leading to the death of a number of people, including a policeman who was on duty guarding the demonstrators.

Once again, CUF refused to go court. These negotiations related to the possibility of forming a “Government of National Unity” in Zanzibar. They were fortunately successful, and a Government of National Unity was formed in Zanzibar immediately after the 2010 general elections.

But that was not the end of the story, for trouble resumed following the 2015 Zanzibar general elections; when the Zanzibar electoral Commission itself cancelled the results of that election midway through the counting of votes, and announced that a re-run of that election would take place on a date to be announced later.

CUF disputed this action by ZEC, and decided to boycott the proposed re-run of the elections.

But CUFstill refused to go to court, even to challenge the disputed ZEC action. Refusal to go to court by defeated candidates, is a very negative lesson. The main point of this story is that CUF has refused, at all times, to challenge the said disputed results in court. And indeed, the NASA coalition’s initial refusal to go to court was certainly a negative lesson.

And that is the reason why we have applauded their subsequent decision to go to court, and described it as the most salutary positive lesson that CUF can learn from the Kenya elections of August 2017.

This is because anyone who sincerely believes in the doctrine of ‘good governance and the rule of law’, will surely want to encourage political parties to always seek legal remedies to their election complaints, whenever they lose an election. Indeed, the election laws of many countries, including Kenya and Tanzania, do provide for reliefs which may be claimed in court by way of an election petition.

One such relief is a declaration that the disputed election was void. Mr. Justice Barnabas Samatta once said the following in one of his judgements:- “The doors to the Temple of justice are always wide open and welcoming to anyone who feels aggrieved by a contravention of the law.”

This open invitation of course also extended to any political party which may feel aggrieved by a contravention of the election laws. This is what actually happened in Tanzania Mainland immediately after the first multi-party general elections of 1995, when the all the participating opposition parties, were apparently dissatisfied with the results of those elections.

But instead of resorting to boycotts and other acts of noncooperation with the Government (as CUF had had repeatedly done in Zanzibar), they commendably agreed to adopt the more appropriate option of filing a combined election petition at the High Court of Tanzania.

This case was recorded as Miscellaneous Civil Case no.59 of 1995, wherein the petitioners alleged that because of the irregularities (which they cited in their petition), they prayed that the entire election process be nullified, and fresh elections be held”.

The High Court seems to have attached great importance to this petition, for it was assigned to a panel of three judges for hearing and determination. The case was eventually dismissed with costs.

But the action itself of the combined opposition parties going to court to seek justice, gave great credence to the presence of the rule of law in Tanzania, and its strict observation by the affected political parties. This. I submit, is the cornerstone of democracy and good governance. Lest we forget.

Hence, in the context of this presentation, there are actually two crucial lessons to be learnt by our political parties which decide to participate in presidential elections. One is that the so called ‘Savimbi theory of elections’, which makes the untenable claim that “if you participate in an election you must win, and if you don’t win you have been cheated”. This should always be avoided.

The other is the invitation that “the doors to the temple of justice are always wide open for any party that feels aggrieved by a transgression of the electoral laws”. This should normally be accepted, as it is the most appropriate option.

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