ConCourt should learn from Kenya how to adjudicate presidential petition – Sishuwa


POLITICAL specialist Sishuwa Sishuwa says the Kenya Supreme Court ruling on the presidential election petition has shown that democracy is not being strangled everywhere in Africa.

And Sishuwa, who is also a lecturer of modern history at UNZA, has advised Zambia’s Constitutional Court to learn from the Kenyan Supreme Court on how to adjudicate a presidential election petition.

The Supreme Court in Kenya on Friday nullified the election of Uhuru Kenyatta following a petition by the opposition alliance led by Raila Odinga, noting that the election was highly flawed.

The court ruled that the election has to be redone within 60 days.

President Kenyatta, who was declared winner of the election which even foreign observers branded as free and fair, said he would respect the decision of the court  but described the judges as “crooks”.


“The nullification of the 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 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,” Sishuwa said. “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 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.”


He said the elation brought about by Kenya’s Supreme Court not only in Kenya but also across Africa showed 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 to emulate. Unfortunately, just like 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 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’,” Sishuwa said.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 lapse into the abyss.”


He said the outcome of the Kenya election petition showed that election observers were at times irrelevant and that the ruling was politically awkward for President Edgar Lungu whose election was petitioned by UPND’s Hakainde Hichilema.

“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 is 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,” Sishuwa said.

“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…In contrast, Zambia’s constitutional changes have not resulted in any judicial alterations. The 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…A new constitution should be accompanied by a changed political culture because a constitution is simply a piece of paper. It 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.”


He said Zambia’s August 11, 2016 elections were a shambles while the judiciary’s conduct following the presidential petition by the UPND was a scam.

“If the ECZ’s management of the August 11 election was a shambles, the judiciary’s handling of the presidential election petition was simply a 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 subsidise their (the governing elites’) authoritarian tendencies,” Sishuwa said.


He further said the Kenyan court’s ruling on the presidential election petition had exposed 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 could not spot what Kenya’s judges clearly could?” wondered Sishuwa.

“Kenya’s Supreme Court nullified the country’s presidential election on grounds that it was not constitutional. 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 refusal by the ConCourt to hear the petition against Lungu’s election reinforces claims by the opposition that there was close 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 a judiciary that is unafraid of ruling against the government and the ruling party.”

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