The verdict of the Kenyan Supreme Court yesterday, annulling and voiding last month’s presidential election contains a lot of lessons for many common law countries of the commonwealth and Nigeria in particular. The reason for my conclusion is the technical nature of the verdict which many have missed in their comments of the court’s decision as its ripple is felt across the continent.
Most legal challenges of elections in Africa and Nigeria, in particular, are mostly based on the conduct of the election on the day of voting. Irregularities with voting methods, citizen’s denial of voting, violence, tampering with voting materials and so on. As a result, the courts have always based their verdicts on what happened on the day of the election. It is not a coincidence, that until this verdict in Kenya yesterday, no opposition legal challenge of a presidential election in Africa has ever succeeded. This is the first time in the history of this continent that an opposition will win a legal challenge to the Presidential election victory of a ruling party.
For me, the technical and nuanced elements of the verdict are very important and instructive. The Kenyan Supreme Court did not base their decision on what happened or did not happen on election day alone. They examined the conduct of the electoral body, procurement of electoral materials, voters education process, its procedural inaccuracies long before election day, errors with voter’s registration process and notification and so on; plus, some irregularities on the election day itself. So the irregularities on the day of the election alone may not have been sufficient to void the election; but taken in totality, the Supreme Court concluded that there is sufficient weight of breaches of electoral acts and the constitution to warrant a new election. It is not just about what happened on the election day.
So the lesson for Nigeria is this; Stop focusing just on what happens on election day alone. Plan to rig elections are years in the making. The Independent National Electoral Commission (INEC) must be held to high standards in its conducts and procedural adherence to the provisions of the statutes. For example, I remember before the 2011 Presidential election in Nigeria; INEC published the Voters register for people to go and verify if their names were on the list much later that stipulated in the Electoral Act (too close to election day); yet nobody took any legal action. It is such procedural breaches by the electoral umpire long before the voting day that adds to the portfolio of error that can vitiate an election.
Many of the past Supreme court verdicts in Presidential election petitions in Nigeria found some irregularities with activities on the election day. But the court has always stated that these irregularities did not rise sufficiently to the level needed to vacate an election victory. This in my view is based on the irregularities on the voting day alone. If irregularities in the entire electoral process are part of the petition, there may be a different outcome. If political parties based their challenge on the totality of INEC breaches (if there were any) they will stand a better chance in court.
Most of the plan to rig an election would have been executed months before voting day. So any challenge from now on should be based on the totality of actions by INEC, the parties and of course what happens on voting day as well. It is this WHOLESOME VIEW of the electoral process that is a worthy legacy of the Kenyan Supreme Court bold verdict this week. An Electoral system is a process, not just an event. The process must, therefore, be executed according to the law without any deviation, gross negligence or incompetent management of its provision. This is my salient takeaway from the Kenyan verdict and a brilliant lesson for Nigeria and our future elections.