The Kenyan Supreme Court released the full judgment (PDF) following the justices’ unanimous dismissal of Raila Odinga’s petition challenging the election of President Uhuru Kenyatta.
Below are some sections of the ruling.
This Judgment, therefore, may be viewed as a baseline for the Supreme Court’s perception of matters political, as these interplay with the progressive terms of the new Constitution. It is clear that this Judgment, just as it is important to all Kenyans in political terms, is no less important to the Court itself, in terms of the evolution of jurisprudence in the domain of public affairs. It is particularly so, in the light of Section 3(c) of the Supreme Court Act, which vests in this Court the obligation to “develop rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political growth.”
…the respondents are invited to bear the evidential burden. The threshold of proof should, in principle, be above the balance of probability, though not as high as beyond-reasonable-doubt…
…the failure mainly arose from the misunderstandings and squabbles among IEBC members during the procurement process – squabbles which occasioned the failure to assess the integrity of the technologies in good time. It is, indeed, likely that the acquisition process was marked by competing interests involving impropriety, or even criminality: and we recommend that this matter be entrusted to the relevant State agency, for further investigation and possible prosecution of suspects.
In summary, the evidence, in our opinion, does not disclose any profound irregularity in the management of the electoral process, nor does it gravely impeach the mode of participation in the electoral process by any of the candidates who offered himself or herself before the voting public. It is not evident, on the facts of this case, that the candidate declared as the President-elect had not obtained the basic vote-threshold justifying his being declared as such.
As I have said before on this blog, the justices had to make both legal and political considerations with regard to this case. I am not a lawyer and cannot comment on the legal aspects of the case/ruling. With regard to the political considerations, I think the court showed its conservative hand – opting for a strategy of letting Kenya’s new institutions grow on their own without strict supervision from the courts; notice the many references to public opinion and perception in the ruling. That is how the court interprets its mandate to “develop rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political growth,” I think.
The Mo Ibrahim award goes to no one this year. The award is intended for former African presidents that have shown good leadership by peacefully relinquishing power and then doing some good after that (mediating a conflict or facilitating dialogue over disputed elections and what not). It’s a $ 5 million award for the first ten years outside of office, followed by $ 200,000 every year for life. Yes, African presidents have to be bribed to relinquish power.
Crude back of the envelope calculations reveals that the answer lies in the macro-economics of these countries. For example, in Uganda, the interest rate is slightly less than the inflation rate (at least according to the central bank website). Which means that if you put your money in the bank or invest it in treasury bills you will not be making much in the long-run.
Now assuming Museveni expects to live for 30 years after he retires, my back of the envelope calculations reveal a present value of only $ 22 million from the Mo Ibrahim award. This is probably change compared to what the big man in Kampala (well, now in Entebbe – it’s close to the airport for easy escape in case stuff hits the fun) can make every year for the next 30 years if he stays in power. For instance, assuming that Uganda’s economy will grow at an average of 2% over the 30 years and that Museveni takes away 0.1% of the country’s GDP of 34.23 b (at PPP), then the man will have a present value of 25 m. Notice that 25>22, and by the way 0.1% is a very conservative estimate.
So it could be that what Mo needs to attract more contenders willing to relinquish power is more money. $5 million for 10 years and then $200,000 per year for life thereafter is simply not enough.
Alternatively, instead of just giving the ex-presidents the money, it should come with a guarantee that the Mo Ibrahim Foundation will help them invest the money in the international markets. This way, their frame of reference will not be the potential returns in their domestic economies – which may not add much value to the award money – but the more lucrative international markets.
Mohammed Ibrahim, the Sudanese money-man trying to give African leaders incentives to govern sanely, has this index of African states, indicating their performance on a variety of governance benchmarks. On the most important index (according to me) which is on the Rule of Law, Transparency and Corruption, the best performing country is Cape Verde, followed by Botswana (I was there last summer and I loved it!). Mauritius, South Africa, Seychelles, Namibia, Ghana, Lesotho and Senegal are also ranked highly on this index. For more information and to look at other indices visit Mo’s foundation website here.
Kudos to these high fliers when it comes to the rule of law. No civil society can exist without laws. Adherence to laws is the true mark of a civilized people. Man sets his own laws and everyone, by residing in any given country, implicitly consents to the laws of that country. So it is important that all people obey laws that they make for themselves. This is not too much to ask, is it?
The failures of most African countries can be directly attributed to the non-existence of the rule of law. It is Montesquieu who said that laws shape cultural mores just like cultural mores shape laws. With good laws we can inculcate in our citizens the virtues of orderliness and predictability. Predictability guarantees me that I will not be shafted by a judge when I am on the right. Predictability guarantees me that I will not be robbed of my property, and that even if that were to happen the law will be on my side. This is the pillar of civil society.
Unfortunately, this is something that is lacking in many an African country. Structural Adjustment Programmes, developement projects of all kinds and all manner of foreign intervention will not bring this to the continent. It is up to Africans to be honest with themselves and acknowledge that to be truly civilized is to obey your own laws. Not somebody else’s but your own laws. laws, laws laws.