Opposition leader Raila Odinga, who had petitioned the declaration of President Uhuru Kenyatta as the winner, termed the court’s decision a first, saying it had never before happened on the continent.
“For the first time in the history of African democratisation, a ruling has been made by a court nullifying [the] election of a president. This is a precedent-setting ruling,” Odinga said.
The media also termed it historic and a first, as have several commentators.
A judicial earthquake: The moment Kenya’s Supreme Court annulled the presidential election, a first for Africa https://t.co/DZ009VZ6yY
— Robyn Dixon (@RobynDixon_LAT) September 1, 2017
This country Kenya! In an Africa first, Supreme Court nullifies Aug. 8 #KenyaDecides presidential elections!!!
— Charles Onyango-Obbo (@cobbo3) September 1, 2017
‘Depends on how you define a court’
“It really depends on how you define a court and whether or not the verdict is respected,” Nick Branson, a senior researcher at Africa-focused think tank Africa Research told Africa Check.
Branson was referring to the 2010 annulment of election results by the Ivory Coast’s Constitutional Council. The outcome of that election saw the election commission declare opposition challenger Alassane Ouattara as the winner, a decision widely backed by among others the UN, US, EU and former colonial power France.
But the council, which validates election results, said incumbent Laurent Gbagbo had won, after it annulled results mainly in Ouattara’s strongholds.
Because of this, the council’s ruling was seen as having been made under pressure from Gbagbo and was consequently disregarded by most observers, Branson said.
The decision consequently set off a civil war that eventually saw Ouattara assume office.
There was also debate over whether the council plays an equivalent role to Kenya’s supreme court, Branson said
“If we can safely exclude the Ivorian Conseil Constitutionnel, then the judgment is the first of its kind (to my knowledge),” Branson said.
Additionally, the Ivorian case was one where the sitting president was declared the loser, not the winner as in Kenyatta’s case.
Other elections annulled for blatant partisan reasons
In October 2015, electoral authorities in Zanzibar also annulled an election. However the archipelago is a semi-autonomous territory and maintains a political union with Tanzania.
Regimes in Algeria (1992) and Nigeria (1993) had also annulled elections for blatant partisan reasons, decisions that were not mediated through any credible judicial process, Patrick Smith, the editor of Africa-focused publication Africa Confidential, told Africa Check.
In another decision mired in partisan positioning, the post-Gaddafi government in Tripoli also annulled an election in 2014, Smith added.
In 1968, a presidential election in Dahomey (modern-day Benin) was annulled after a boycott saw just over a quarter of voters turn out, but like in Nigeria, this was by military leaders.
Madagascar decision as close as it gets
In 2002, Madagascar’s Supreme Court invalidated a decree that had mandated a recount following results that showed the incumbent president, Didier Ratsiraka, had lost to challenger Marc Ravalomanana in December 2001.
The resulting power struggle saw Ravalomanana eventually take office. Smith said that the Madagascar decision is as close as it gets to a precedent for the Kenya decision.
“The big point about Kenya is that the Supreme Court has legitimacy under the new constitution and was generally accepted.
“So it does look like this is the first time that a Supreme Court has heard a petition of a presidential election and a majority of its judges have voted to cancel the results announced by the electoral commission and order fresh elections,” Smith said. “So it is genuinely new territory for all parties concerned.”
Said Branson: “I wouldn’t consider the events which transpired over several months in Madagascar to be directly comparable to the judgement issued by Kenya’s supreme court on 1 September. The latter was as clear and unequivocal as the former was confused and subject to dispute.”
Thierno Bah, professor emeritus at the University of Yaounde and an author of several books on African history, agreed.
“It’s the first time in the contemporary history of Africa [that] a supreme court [has] overturned a presidential election. This day is an historical one not only for Kenya, but for the whole of Africa,” he told Africa Check. – Lee Mwiti (04/09/2017)
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