IS THE JUSTICE DEPARTMENT RESPONSIBLE FOR THE DEATH OF DEMOCRACY IN AFRICA?

By Jerry Okungu
August 12, 2008

It is a conspiracy theory that may shed light on the people who plotted to rob Kenya, Zimbabwe and Nigeria of fair elections.

Between 2006 and 2008, Africa has witnessed three of the most controversial elections on the continent. First then Nigerian sitting President, Olusegun Obasanjo threw caution to the wind and ensured his preferred successor won the presidency by any means necessary. The then unknown Ya’ Adua, a former State Governor beat all favourites including Obasajo’s Deputy President to clinch the coveted crown.

Despite all the glaring irregularities and outright theft of ballot papers, the Chief Justice of the Federal Government of Nigeria went ahead and swore in the new president legitimizing him as duly elected and duly sworn in. However, in the Nigerian case, there was a semblance of decorum. The swearing in took its due process without being rushed. There was a window for lodging complaints and objections. Those who needed to go to court were afforded an opportunity for lodging a complaint before the swearing in.

Then Kenyan case followed a year later. With all the international and local observer reports returning a “no fair and free elections”, with the main opposition party crying foul that it had been robbed of victory, the Electoral Commission went ahead and announced the results without tallying all the votes. And within minutes of the election results, the President was declared duly elected and duly sworn in. What followed is in the public domain.

Three months later, Zimbabwe held its General Elections in which the opposition beat the ruling party with a narrow margin even though the results were not made public. Three months later, there was a presidential rerun in which the ruling party literally ran the opposition out of town through naked brutality. Those who died died while others remained maimed. For those people light of feet, they took to their heels to look for safe havens across their borders.

In all the three cases, the judiciary, through the Chief Justice actively participated in the rigging of the elections by knowingly accepting the results of the flawed elections. By doing so, they became party to the crimes that had been committed through a flawed electoral process and the violence, as in the case of Kenya, that was sure to follow.

Under the present circumstances and based on this widespread behavior of our judicial systems, can African governance systems claim to have three independent arms of the state keeping watch over one another’s excesses?
In the Kenyan situation; a day before the President was sworn in as duly elected, the Electoral Commission Chairman had publicly acknowledged that he had lost contact with some of his presiding officers in the field.

Faced with more heightened tension in the counting hall, Chairman Kivuitu threatened to announce the results, if necessary, aboard a battleship without waiting for the lost presiding officers because he believed they had disappeared to have more time to “cook” the results from their respective polling stations. His threat to announce the results aboard a battleship was informed b y the fact that there would be chaos after the results.

The nation was therefore shocked to learn that in the late afternoon of Sunday December 30, 2008, he dramatically summoned the police to clear the Presidential vote tallying center before announcing the results through the government broadcaster. Between the time the results were announced and the President was sworn in by the Chief Justice was less than half an hour!

The principle of natural justice according to one sitting judge requires a period within which any aggrieved party can raise preliminary objections to the results. In this case, the ceremony did not even wait for the main contender to concede defeat!
If the ceremony took place without tallying and verifying votes, why did the Chief Justice accept to participate before directing that the due process of the law be followed?

All along, we have blamed the Electoral Commissions in Africa for the mess however, why have we overlooked the role played by heads of our judiciaries? Perhaps it is time our civil rights movements started paying more attention to our judiciaries as we struggle to strengthen our governance institutions. Without paying attention to this area, we may never achieve much in our good governance department.

jerryokungu@gmail.com
www.africanewsonline.blogspot.com