The SADC Lawyers’ Association (SADC-LA) joins the international community and all citizens of the world in congratulating Kenyans across the country’s political divide for their strong show of confidence in the use of the courts to resolve electoral disputes. Not only that but for largely desisting from violent means to challenge the outcome of an election. This has shown the world that African societies can rise above violence and give their state institutions a chance to administer justice even in the face of evidence suggesting everything to the contrary from their very own history.
It is in this context that we welcome the decision by the Kenyan Judiciary to subject the Kenyan presidential election of 8 January to a re-run on the grounds that there were irregularities that rendered the process inconsistent with the constitutional provisions and therefore null, invalid and void. The decision is one that chooses to put Kenya’s democracy to the test rather than merely endorsing a flawed process. Notwithstanding any outcome to the new round of elections, the full and peaceful adherence to the court determined route will embolden not only Kenyan but also African democracy. The decision is a monument to separation of powers and respect for the rule of law worthy of emulation across the African continent. Indeed it has reignited confidence in the strength, impartiality and independence of institutions of government that support democracy, especially the judiciary of Kenya. It has restored hope in the viability of elections as means to sustain democracy and durable government.
We note that the Kenyan Bench made this decision on a ratio of four judges to two out of the six benchers. The presence of dissenting judges in the bench is a true sign of democracy. We take this as a clear sign that all parties were not only represented, but fully heard in the highest courts of the land leading to an all encompassing decision. We encourage all judges and jurists across Africa to read the full judgment of this case once it is made available and to apply and replicate its principles without fear or favor.
SADC-LA at the same time invites all of Kenya to continue to abide by the ruling of the court and to shun any comment, action or omission that is likely to cast aspersions on the administration of justice by undermining the judiciary as a consequence of this ruling. As the world watches, Kenya is at the brink of breaking new ground in setting the tone for democracy in Africa. We stand behind them in re-asserting democracy, the rule of law and separation of powers in Kenya and beyond.
We reiterate that it is not the prospect of any outcome to the re-run that SADC-LA herein comments upon, but that it is the principles of peaceful dispute resolution, commitment to transparency and fairness founded on judicial independence and impartiality that we extol in regard to Kenya based on the events of the past few days. Above all we commend the strong show of faith by Kenya’s citizens across the political divide in their constitution and the institutions charged with defending it.
In conclusion we exhort all governments, independent electoral bodies, judicial institutes, political parties and citizens in general especially those in the SADC Region to take note of the lessons learnt from Kenya. That no one is above the law and it is possible to strengthen and utilize national institutions to defend and uphold rule of law, respect for democracy, adherence to constitutionalism, and to promote independent and transparent electoral bodies.
By Stanley Nyamanhindi
For and on Behalf of the SADC-LA Executive Committee and Council