By Chidi Anselm Odinkalu
“The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”
Article 21(3), Universal Declaration of Human Rights
In April 2017, Maina Kiai changed the face of presidential elections in Kenya. He is neither a politician nor was he a candidate or aspirant seeking political office. Maina trained as a lawyer. For five years, from 2003 he Chaired Kenya’s National Human Rights Commission. In 2011, Maina became the United Nations Special Rapporteur on Freedom of Peaceful Assembly and Association. He held that position until 2017.
When he sued Kenya’s Independent Electoral and Boundaries Commission (IEBC), however, in 2016, Maina acted as an ordinary citizen asserting his rights under Kenya’s Constitution of 2010 to ask Kenya’s courts to protect the integrity of elections in his country. He had good reason to do so. Kenya’s Court of Appeal pointed out in its judgment of 7 April 2017 that “Because elections determine political winners and losers, electoral processes, from voter registration through to declaration of results, have long been targeted for manipulation and are the foremost cause of electoral conflicts. Such manipulation or, sometimes even the mere threat of it weakens public confidence in democratic processes, in the courts, security agencies, in the legislature and in the end can erode the legitimacy of governance institutions.”
In 2011, Kenya’s parliament had enacted an Elections Act. The following year, the IEBC supplemented that law with the Elections (General) Regulations. Both the principal Act and the subsidiary regulations under it provided that the results declared by at the polling unit and by constituency officials in presidential elections were provisional and, therefore, subject to be altered or confirmed by the IEBC at final collation. Maina invited Kenya’s courts to void these provisions and pronounce them as unconstitutional because they created the loophole through which presidential election results suffered mutilation and adulteration between the polling units and final announcement by the IEBC.
Many people thought this case quite audacious on many grounds. First was that it was instigated by ordinary citizens and not by a political party or a candidate in an election. Second, the courts decided to accord the citizen litigants standing to institute the case when it may have been more convenient to throw them out on a situational jurisprudence of standing to sue. The third surprise was that first the High Court and then the Court of Appeal of Kenya upheld the case of the citizens in its entirely and granted the orders sought. In other words, it was the courts in Kenya that abolished the rigging of elections through multiple levels of collation and compelled the IEBC to ensure that the results announced at the polling units are not different from those announced at the final collation.
Five months later, in September 2017, the Supreme Court of Kenya followed through the logic of this decision and nullified the results announced by the IEBC in the presidential election which showed significant alterations and adulterations at various levels of the result management process. Four years earlier, in 2013, the Supreme Court of Kenya had upheld results which suffered similar challenges but then the rules were not as clear. Interestingly in that case, one of the petitions instituted in that year was by Gladwell Otieno, another ordinary citizen who led an organization called the Africa Organisation for Open Governance (AfriCOG).
These kinds of developments are unthinkable in election accountability and dispute resolution in Nigeria. Mind you, if the kind of decision handed down by Kenya’s Court of Appeal in 2017 in the Main Kiai case had been possible in Nigeria, the Independent National Electoral Commission (INEC) would not have got away with the impunity of its undisguised rigging of the most recent governorship election in Edo State and the official burglarisation of that election would not have enjoyed judicial certification.
The only persons whom the courts are willing to hear in Nigeria’s elections are political parties, their candidates or INEC. Yet, the dispute in every election is over the mandate or votes of the people or the citizens. In this dispute, the courts in Nigeria routinely deny the voters any right or standing to be heard even though they are bound by the outcome. There is no lawful or constitutional basis for that jurisprudence. If anything, the constitution clearly mandates that citizens shall have the right and standing to challenge or participate in such proceedings if they choose.
This assertion has solid constitutional foundations. The judicial powers of Nigeria’s Court as established in Section 6(6)(c) of the 1999 Constitution extend explicitly to “the determination of any question as to the civil rights and obligations of that person.” Universal franchise as the foundation of the mandate to govern is a civil right and obligation of the highest constitutional salience. It is protected by the Constitution; by the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, which is domestic law in Nigeria; and by the Universal Declaration of Human Rights.
As Kenya’s Court of Appeal proclaimed in 2017, “the constitution proclaims the sovereignty of the people, the supremacy of the Constitution and imposes on every person a solemn obligation to respect and defend the Constitution.” Citizens cannot fulfill or uphold this duty if judges continue in their incest with politicians which prospers from the judicially procured exclusion of the people.
The only thing that seems to confound those who oppose this point is not the soundness of its constitutional validity but the convenience of administering its logic. They seem terrified by the prospect that this is a facility that may be exercised – in presidential elections – by tens of million of persons. This is not a legal objection but a design or engineering proposition in respect of which management options have been authoritatively canvassed previously.
One approach to this is to require the INEC to first prove substantial compliance with applicable laws before a constitutional or electoral chamber in a process in which citizens can participate and contest its claims. In its 2008 report, for instance, the Electoral Reform Committee headed by former Chief Justice, Mohammed Lawal Uwais, recommended exactly this, arguing that there should be a “shift the burden of proof from the petitioners to INEC to show, on the balance of probability, that disputed elections were indeed free and fair and candidates declared winners were truly the choices of the electorate.”
Another would be to recognize that citizens or civic groups have standing in election petitions in representative or test capacity. The roll of voters for this purpose can be recognized as a class whose members share a common interest in credible elections and in results that bear fidelity to the expressed will of the people.
These pathways are not mutually exclusive. The appeal of the latter is that implementing it does not require constitutional amendment. It simply needs the courts to perform their duty of upholding the constitution in its text and structure. In doing this, as the Court of Appeal of Kenya reminds us we must be keenly aware of the need to “insulate the electoral process from the deleterious perils and malaise of opacity, corruption, crime and malpractice.” The resolution of this problem is too important a task to be abandoned to a joint enterprise of the self-same people responsible these crimes in the first place.
A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu
