Why not have an East African Supreme Court to decide?

Justice Kasule’s decent proposal on presidential election petitions

Kampala, Uganda | RONALD MUSOKE | Two weeks after Kenya’s repeat election held on Oct.26, Justice Remmy Kasule of Uganda’s Constitution Court, bounced a novel idea off another distinguished legal brain in the region— Dr. Willy Mutunga, former chief justice of Kenya.

Justice Kasule said: What if the East Africa Community created a joint Supreme Court whose decisions on fractious issues are binding in each of the six member countries; wouldn’t the region avoid accusations of bias in tense cases such as witnessed in Kenya presidential election petitions?

Justice Mutunga was in Kampala to deliver the Fourth African Centre for Media Excellence (ACME) lecture. His topic was “Media and Politics in Africa” and Justice Kasule who is a highly respected judge was expressing concern over a raft of presidential election petitions that courts in EAC member countries have had to decide. The Supreme Courts in both Kenya and Uganda, in particular.

The Supreme Court directive of Sept.01 that compelled the Independent Electoral and Boundaries Commission (IEBC) to hold fresh elections within 60 days reverberated around the world and was welcomed by pro-democracy campaigners.

But it also rattled the Kenyan incumbent President Uhuru Kenyatta who had been declared winner by the IEBC after winning 8,203,209 (54.27%) of votes against challenger, Raila Odinga’s 6, 762,224 (44.74%).

Fresh elections on Oct.26 were won by Kenyatta with 98% of the votes cast after Odinga rallied his supporters to boycott. When Kenyatta was declared winner by the IEBC, the opposition again challenged the result in the Supreme Court.

But on Nov. 20, the Supreme Court upheld Kenyatta’s win, clearing way for Kenyatta’s swearing in on Nov. 28 for his second and last five-year term but did not clear away the divisions. Meanwhile, Odinga and his supporters are still gnashing. The country remains torn between West and Central.

In the past decade alone, presidential elections have been challenged in courts in Kenya, Ghana, Gabon, Zambia, Nigeria, Sierra Leone, Uganda and Zimbabwe yet in all these countries, it has been hard to have the elections nullified.

The judiciaries in each of these countries have often decided in favour of the status quo with many cases being dismissed without fair consideration of the merits of petitions.

Uganda’s case

There have been similar sentiments in each of the three presidential petitions taken to Uganda’s Supreme Court.

In 2001 and 2006, Dr. Kizza Besigye challenged President Museveni’s victories in the Supreme Court and lost the petition on each of those occasions.  In 2016, it was the turn of former Prime Minister Amama Mbabazi to challenge Museveni’s win in court. He too lost. They all alleged that Museveni used illegal practices to obtain votes and the Electoral Commission had been complicit in this.

In the 2001 case, the Supreme Court agreed that a number of voting irregularities had occurred but the five judges ruled that, although malpractices had occurred, these were not found to have affected the result of the election in a substantial manner and that Museveni had neither personally committed or to his knowledge directed others to commit an illegal practice.

After the 2006 presidential election results, Besigye again issued an election petition with more or less the same results from the Supreme Court:  the judges upheld elements of Besigye’s claim but did not nullify the election result.

But in his summation in 2006, Justice Kanyeihamba who was one of the seven judges hearing the petition argued that since he agreed that the laws governing presidential elections had not been complied with, then he had to agree that this had affected the election results in a substantial manner.

“To decide otherwise would, in my opinion, manifestly conflict with the unanimous findings of the court on non-compliance of election legislation. Once a court finds that the Constitution, the Supreme law and other country’s laws have been flouted, that court must do its bounden duty and grant the remedy sought.”