Well, hello, everyone, and welcome to the afternoon session,
we had such a fascinating panel in the morning and this is going to be another one of those exciting conversations,
and we're delighted to be joined by an excellent panel. Today on my right is Louis Franceschi from the University of Strassmann and in Jordan.
Barney follows him again from Struck More University and Nic Cheeseman, who was formerly Oxford and now University of Birmingham, and Ann McKenna.
I work for the Africa Oxford Initiative, a platform that draws all of Africa's interest across the university.
And this session will be about the Kenya Supreme Court ruling in 2017.
The facts of which I think most of you would be familiar with,
and I think both the cartoon at the top there just gives an illustration of the relationships between the courts and the politics in Kenya as a whole.
And so I'm going to invite Louis to kick us off with giving us a bit more detail on the actual Supreme Court's decision in 2017.
They thank you. And a first I have to begin with a disclaimer.
She did not give me the right of speech or would it first because I have a tie a I have to explain that they love for convention,
my love for convention, and it is inversely proportional to a distance between one away from my house.
So we have added in a formal dinner tonight and I want to go back and get it.
And yet, you know, I read today an article very recent by Richard Eakins.
He speaks of the rise of political litigation. And he explains that the UK constitution is deeply political will.
The Kenyan constitution is deeply, you could say, judicial A.
It's very interesting because what we are witnessing nowadays and I express this, yes,
to go to the issues to do with a duty is through the end of the recession because then a John will
speak a little bit more about the context and and somehow the way I think we we agree we would move a.
So we are witnessing the politicisation of the judiciary and the judicial system of politics weighing in in the UK you may speak of.
Or he at least speaks of the politicisation of the judiciary or litigation and the rise of judicial litigation or political litigation in Kenya.
We are witnessing the judicial decision of politics,
meaning politicians go to court because the Constitution gives them the possibility the opening of the gates,
the ample gate they go to court to sustain their political interests alive and kicking.
Now, of course, what ends up happening is the politicians end up using the court as what William Mutunga calls.
I'm sorry for putting so crudely, but as toilet paper,
meaning they clean the mess a with the court and they blame the court did how this happened in 2013,
when the court was blamed by half of the country for not having nullified the election.
And this happening again in 2017, when the courts who are blamed by the other half for having nullified the election and then later on,
he blamed for not nullifying the second election. So you find yourself with all these dilemmas, which when are very sensible and very interesting,
very delicate and are building somehow a body of jurisprudence in Africa, which had never been seen before.
Because one of the key legacies of the 2010 Constitution in Kenya is the independence of the judiciary,
which was created by a structure that put in place systems that would help that.
And thank God, Willy Mutunga, the first chief justice, made sure that the structure was put in place.
Of course, I'm not going to answer, and this will just have like this political saying this if the judiciary is independent or not a.
But let's look a little bit more at those genuine tensions with twisted in tensions between the politics and the law.
In this specific case, so Francis Fukuyama explains in a nice way that the less you trust the executive, the more the litigation.
And he gives a data on this assertion, and he says the more the litigation,
the more checks and balances in the administration and the more checks and balances,
the less efficiency in the administration of justice and the less efficiency, the less you trust the executive.
So you fall into a cycle that has no end.
You trusted little, you litigate more. And social media has come in to fuel the speed of that cycle.
So we social media, the lack of trust of our government is exponentially increased in speed and reach.
So we had this situation in Kenya at government, a system we trust.
We did not trust much and we had a court system that still could be trusted.
And this happened because the Constitution said somehow certain boundaries that made this new system reliable.
In terms of appointment of judges budget, it said there are structure independence with a judge,
personnel and structure structural then the election of the 8th of August takes place
in 2017 and everything seems to be so smooth that is practically unbelievable.
Results are streamlining. The application is working well.
The electoral commission is showing the result. Certainly, some strange things start happening and people are still wondering what's happening here.
And Raila Odinga loses the election. We 6.7 million who are looking at that win seat with 8.7 8.2 million and a well, the end results are declared.
Raila Odinga goes to court and the court makes a decision, a decision that is binding.
And according to a law within the timeframe specified that these elections,
this declaration of results was not done in accordance with the Constitution.
They declared those results invalid and they order for fresh elections to be done within 60 days.
Now first, some people have called the Raila Doctrine that whenever you lose, you should go to court.
But that doesn't mean Nasiru Abdullahi, who is a little bit nasty because Raila has actually done that whenever he has lost.
You have gone to court a day.
There were costs involved in this case that were cost of life.
I mean, Masondo, the I.T. manager of the Electoral Commission, was killed some days before the election.
A, there is a tension there between wealth, health and power that is always difficult in Kenya, and you had forms that were key to prove the results.
The famous 34a that were never saved, at least in their totality, or they were never recorded as they should have been recorded.
There were structural problems in the way they or rather radical problems,
in the way the forms were recorded and transmitted the transmission process.
I mean, a third of them could not be found could not be traced. So the dispute takes place and the election again.
The expectations of everybody, including including Raila himself, are declared null and void.
I mean, the declaration of results did not happen and the court order for these fresh elections,
they are two aim dissenting opinions against the four judges that nullified voting for the nullification of elections.
There were the opinions of some joking the Moon and Justice JB or Zhuang in debut.
Which one was fighting for the lawyers to be just lawyers?
They you really call mind of a judge applies to the law.
So where in the law do you find the justification to nullify the elections?
A Well, Judge Thomas Joni's is very much, you could say,
a I hasten legalistic mind that perhaps the not one to resist looking at the context of what was happening.
And he said, Well, no, according to the law,
I don't find sufficient that threshold of evidence we are requiring here is not made for an ification because you
have that usual dispute between the aim and the how call the balance of probabilities or beyond reasonable doubt.
Then where do you go from 50 to 90 percent?
Do you place yourself somewhere on 75 percent, which is what the court had said before four cases of of elections, which are never perfect.
So how imperfect should not? Should an election be to be nullified?
And how should that imperfection eh, give you a hint of the results not being genuine, then a joke in the movie was much more practical.
She was an activist before joining the court, and she said, Look, we are electing here six people.
Everybody was voting for a candidate for president in the Senate by a National Assembly,
a county assembly, women representative, etc. So if you if you.
The election of the president,
you have to nullify your election to the other six people in a way is a very interesting point you brought up in her 900 page decision,
which she wrote within six days. So then, of course, what happened?
The court decided to nullify the result. But on the court to declare a hero, et cetera, et cetera, the Chief Justice became a hero.
And two months later, they couldn't nullify an election, which was far more imperfect a that of the second election.
We had a fresh election in November. A biko's in it.
Certainly, they will have to run the country into total disarray. So you say, well, here you have the perfect tension between law and politics.
United defy an election which has some imperfection, which was measurable.
And I believe the imperfections who are substantial.
But you need not nullify an election that was far more imperfect because you did not know what to do in that second case.
I mean, as soon as you nullified the election, Raila said.
I don't believe in the electoral commission, but the president could do nothing because he's holding those interim powers.
I mean, he's the the president doesn't have power appoint anyone at that moment and Deng who is going to appoint these new electoral commission.
So you get into a constitutional crisis that had been pushed by a political crisis.
But anyway, that belongs more to the soul. Well, that's how we find ourselves in in this tension of fresh elections, new elections,
declaration of results, whole elections not only by their first two presidential elections.
The court have jurisdiction or the obligation of nullifying the whole election process.
Or should every governor have asked for it.
I mean, all those are a intricacies that we are learning with the process because really it's a whole new process.
Well, I will leave it there because seeing it, you know, awaiting a lawyer with a microphone and a willing audience can talk for these.
And I, I think money can tell us a lot more interesting things about the context.
So if I welcome you to speak, we have. This has been hailed as the first of its kind in contemporary history of Africa.
What factors put together made this happen in Kenya, the way you did and when it did?
Look at the way it did. Can it come at the end of.
Oh, it's hard to speak about these elections, and I kept telling my my mentor here, Professor Louis,
I would just pick about an election horse, but a court decision that you know, a bit more than just the decision itself.
It's very hard, I think. But I want to say that elections that have been evolving.
I remember as a small boy witnessing the longer elections in 1988 no longer means a coup,
and it's actually for curiously a queue behind someone and the other one and the other one.
And there's a picture of your candidate in front. I saw it and it was very violent.
And the picture would shift. So you begin thinking you're queuing for money.
Then in between the elections. Somebody else who did the queue and the money is safe today so that it was very violent.
We move it to the next level. And there were a lot of challenges, for example, between the elections to be conducted in the polling stations.
Tallying is not done, the accountings are down, they're sticking to another station and in between is carried by police officers and
government officers who ordinarily were instructed to do something to eat the ballots.
So the integrity of the process was really messed up and we have been fighting for reforms since those days.
The other reforms have been, of course,
in the areas of the electoral management body itself from a very government controlled electoral management body to a very independent,
at least independent. And of course, I'm speaking at this point again towards the end of 2000 and suddenly a very independent
one after after the 2010 Constitution in terms of managing the ballot itself,
you know, and the vote itself. You'll be surprised that I think that Kenya's electoral process is the most secure in the world.
I'm open to get from you if you are this more is more protected than I was.
I could describe that. I think it less than a minute. What happens in is voting takes place,
a place in a polling station and we have around forty thousand eight hundred of them, the country in the polling station.
Every political party has agents and everyone can witness that.
So your vote and the tallying happens there.
It's recorded in a form what you hear from that before that form is signed by all the agents and every political party is given a copy.
Towards the end, the last reforms is that that form is can't put an electoral system called Kym's can
the integrated electoral management systems and send to the headquarters directly.
No one can tamper with that. So the results are tamper proof actually both electronically and manually.
Then they move again to the constituency and they are tallied there and another form from that, it will be made at that point.
And again, the same system happens. So it's actually impossible to see like an election.
You cannot steal it. You can only break into it. It must be a burglary, an act of burglary, and everyone will see you doing that.
But it has still been possible to do it. That's the amazing part.
Actually, it has been possible to steal an election. As ridiculous as that, I can't imagine another country without a rigorous process.
And I think the question that that one might want to ask is, how has it been possible to do that?
How has it been possible that when everybody think cameras, everybody has the result, but you can still there?
Give us a different result. The answer for me, I think, is very simple and especially for those who were here yesterday.
It's very simple. There's nothing like a set down.
There's no state in Kenya, the best you have is a consideration of several nations that are very loosely put together and that are this central place.
The rule of law does not stand.
I could be speaking for Africa a lot, but it's also true about Kenya that we don't care so much about debt or the country.
We have our small nationalities and the origin of this comes from the colonial epoch.
And for those of you who are interested,
you could look at the moment and is the citizen on the subject and you would see how we were citizens and subjects at the same time.
And then and there was a tradition of minority settlers by white settlers that lived in a civil society, sort of.
And the majority of the Africans that then lived in the native reserves.
And because they are majority, they are also divided in small and of course, around ethnicity.
Or they refused to call ethnic or tribal equality nationalities.
I think that communities of nations and those nations then were never allowed to work together.
And meanwhile, all they see from the state is oppression, harassment, early nation, land grabbing and all those kind of things.
So the threat to them is a foreign concept. The only few Africans read about this new state of the world who come to work,
they in urban areas and eventually the leads that take over the state and their experience of the state is that it oppresses.
It's not part of the people. It's not meant work for them. And so the culture of impunity takes over the country from the 1960s.
We have assassinations, you know, unexplained massacres, looting, corruption, land grabbing, all those kind of things.
We can think about what is left to the local, said Gupta. We began experiencing that quite early, so that is the kind of state we have nurtured.
And how do the people look at this state and look at it as an enemy? That tends to be the thing.
And they come together as communities, you know,
as nations thinking that they can grab something at that centre of political power and that they want to use somebody that comes out of their leader.
And that will be, say, Kenyatta, maybe I'm sorry to say this, but for the Kikuyu over there, Northern Ireland,
every community is looking for a king looking for Goliath to go and fight for them, and that's always walking at this stage.
So how that turns out. Therefore, the national level is that the ballot is not an individual vote, it's a corporate vote.
And you can know how connect is much better than me in this.
You can know how much you can get in an election. The scientific consensus Raila knows how much it can get.
My guess is that he knows he can't win. Who knows how much is it going to get?
And my guess is that he knows it can't go beyond what he got.
And so we must just keep inflating a few things here and there and does the problem that then we have.
And behind them are nations that think that this leaders support or stand for a certain ideal that they they believe in.
And so the conflict begins. This conflict has several battle fronts.
I have a lot of time again so I can take my time. But this conflict has several battle forms.
Part of it is just violence. We had the panel here talking about the International Criminal Court, just violence.
Part of it could just be the the the politics in the streets could just be in the in the public appointments,
which community gets, what's that kind of thing? But eventually, when everything has come to an end,
that battle must be decided at the ballot because whoever takes the reins of
the state can therefore control the state and probably benefit its own people.
It's a myth. We haven't done a scientific study yet to know whether you'll benefit if your leader is in power more than the other communities.
It's a study that we need to do, probably more scientifically. But the perception amongst the people of Kenya is that if one of your own and
your own must be a member of your community takes over the reins of power,
then you are safe. So small tribes have to work with the bigger ones, the amazing tribes loosely,
but the communities they work together and then try to to fight the other ones, you know, and that kind of thing.
And so when they come to the court, they're not looking for justice.
Trust me. So whatever the judges say, it doesn't make sense to me because I understand what people are looking for.
And that's why before the legal right also that when the court nullifies this side complains when it's nothing like if I decide complaints again,
it is the same size, same points, but they complain because they didn't rule for us and rule for us that we must win.
This battle is an international conflict. In other words, it is not an election dispute.
Another context which I want us to understand this Kenyan politics.
And so what happened in 2017, therefore, was that international conflict coming before judges who are also equally human judges born in Kenya?
All of them, actually. They live in a time with interest Kenyans when making commissions and would appoint a mixture.
And that's how, for example, in curricula from South Africa came to help.
They discussed elections, but in the Supreme Court, it's now entirely Kenyan, and the judges are members of these nationalities.
And I can tell you for free that I think that most of the judges took sides as well.
Look, I tell you for free that the president knew the outcome of the election before the Election Day.
How do you know this is another list of this in Kenya?
But I can tell you that the president did not show up in court or any of his members on the day of the verdict.
How did he know? And at that point already knew that the election would be notified?
How did they know and how did they know that he has one or the other side because they showed up with the entire team?
They were very happy and positive.
So it tells you that even the judiciary people are checking for ways the member of my tribe or the one that is sympathetic to us,
who can then rule for us this way. And and so the battle that went to the court was a conflict that the court could not
determine it was beyond them and whatever decision they going to make was headed nowhere.
So how do I end this and I hope I can come back to this during question time? And this by saying that the court was given an impossible mission.
Is that a mission normally achieved by courts? It is bound to fail, and it failed terribly badly.
If you want to know how, just check quick Google search there was no repeat election didn't take off.
And as we speak, Raila Odinga and Uhuru Kenyatta are working together as friends.
Thank you. It's as if I predicted what you are going to talk about so you can see what's up.
And I think this is a good time to bring in Nick and to give us a bit of the repercussions of this decision is what happened and where are we now?
What is going to happen to the legitimacy of the Supreme Court and the decisions
that will be made in the future given the two years that have gone by? Thank you very much.
I'm very tempted to start talking about how you could rig even a perfect election following my book last year called How to Book an Election.
But I'm not going to do that. I'm going to stay on topic, and I'm going to follow the suggestion that we had earlier that,
you know, maybe we're leaving the law behind a little bit too much in some discussion.
So I'm going to take us back to the law and I'm going to router's in precedents two different types of precedents.
I think one of things that we haven't said yet,
it's really important is that the 2017 verdict came after the 2013 verdict, which had set a legal precedent.
And one of the things the Supreme Court did in 2017 was reject that precedent.
The precedent in 2013, if I could sum it up very briefly,
was if you can show that an elections result was changed through the rigging, then you don't overturn the verdict.
This is effectively what all international observers do they think about.
Not just was the process good or bad, but what the outcome probably changed that seemed to be at the heart of the understanding.
It's a very long verdict, but the heart of the understanding in 2013. In 2017,
under a different Supreme Court chief justice who had been personally responsible for some of the electoral processes of the judiciary in 2013,
a very different process of jurisprudence was important.
And effectively, what that court did was decide that it was going to protect the Constitution,
and its fundamental role was to protect the Constitution. And if you talk to the Chief Justice and hear him explain his decision,
he will explain it as a way of defending the legal system in the Constitution
and the process of the election was not legal irrespective of the result.
And so the critical difference in 2017 was that the court asserted the right to reject an election.
Even if the result could not be shown to have been changed by the manipulation, the process had to meet a certain standard.
My belief is that one of the reasons that changes is because the Chief Justice changes.
But another thing that I found out in interviews with people who sat on the committee of the Judiciary that
handle electoral matters is that they had actually had training from lawyers from various parts of the continent,
including a very influential figure from Ghana.
And the part of that training had stressed to them that they didn't have to be able to show that an election had been won by the wrong person.
To be able to say that that election didn't meet an appropriate standard and that that was at the back of their mind when they went into this process.
So I think we have a very different type of decision.
It's a much more radical decision made the decision that you can nullify an election, even if you don't know who wins,
is actually really radical because it means that you don't actually have to have that much evidence to do it if you wanted to.
It also has significant implications for future elections.
But here, I slightly disagree with one of the previous speakers because I'm not sure that the 2017 rerun election was far more imperfect.
And the reason I say that is that there are a number of reasons that went into the 2017 election verdict first time now.
One of those was that we didn't have all of the forms that were supposed to have been in and copies our versions of them,
and therefore there was accusations by the opposition that those were the forms that were used to rig the election.
That doesn't seem particularly plausible, but that was the argument that was being made.
Another was that the ABC refused to give access to its service once it was requested by the courts in the process of the decision itself,
and that that lack of transparency counted against the ABC and the official result.
There were others also relating to the process of the ABC that day by the time of the rerun.
Most of the ABC's process worked better.
The problem of forms not making it in and the scandals not being able to be received was resolved by the rerun election.
Now you can argue it was resolved precisely because the opposition candidate had
dropped out of the race and therefore the president was going to win by a landslide, so it didn't matter if the process worked perfectly.
But the process did work better. So from the court's point of view,
the second election was a better quality election in terms of the procedural processes that were supposed to be followed.
It conformed more to the law.
It was a less perfect election in that Raila Odinga boycotted it and that there was violence around the election in opposition strongholds,
parts of Kisumu, parts of Kibera, where opposition supporters tried to prevent people from voting, hoping that that would void the election.
But that decision of Raila to boycott was his decision, and it didn't make the election illegal.
And the fact that he refused to contest wasn't the fault of the ABC. So in my opinion,
the the Supreme Court's decision was reasonably consistent in that the first election was poor quality on procedural grounds in the second.
And therefore, I think it was perhaps consistent as well as political.
Let me now talk about the political process and a different kind of precedents.
One of the things that happened when we had this decision was that there was a wave
of speculation in the media that we would see a judicial activism across Africa.
This would be the thing that you the that would set off the fireworks and all of a sudden across the continent,
judges would start to turn down elections and decide against presidents.
And of course, those of us who've been watching Africa politics for any length of time knew that this was unlikely for a number of reasons,
one of which was that very, very quickly we saw presidents across the continent warn judges of what would happen if they did this.
We actually saw two or three countries where presidents immediately took steps to undermine
judicial independence in the lead up to elections that were coming the next year.
We also know, of course,
that there were not that many countries in sub-Saharan Africa where the judiciary has the quality of independence that it does in Kenya.
And one of the things that the elections really did demonstrate to us was the extent of independence of the Supreme Court.
The final reason, I think, why we shouldn't expect this wave of judicial activism to necessarily be triggered by this decision is what's
actually happened to the Kenyan Supreme Court and the Kenyan judiciary since the election decision was made.
So I'm going to talk about three different things that have happened since 2017.
One relates to the way that the decision was misunderstood and the implications of that in Kenyan politics.
The second relates to the way that the decision put the Supreme Court itself in the firing line this process of digitalisation.
And the third relates to the fact that the Supreme Court quickly realised that it
did not have the mechanisms to solve the problems that it itself had identified.
So very quickly on the first one, a lot of opposition supporters took the decision to mean that Raila Odinga had won more votes.
If you talk to the Supreme Court, this was exactly not what they were saying.
They were saying they did not know who had won and because the process was illegal, they had nullified the process to have a rerun election.
But in opposition strongholds for good reasons,
people interpreted this to mean that the opposition had won and not just that it had won this election,
but that it really won all the previous elections that they believe that they had been rigged out of.
So in that sense, the election,
the decision was seen to legitimate a certain argument about what is happening Kenyan politics over the previous 20 years.
And that plays into them the willingness of some of those communities to be very
critical and sceptical of future electoral processes and of the government in general.
I'm not saying I should say that the elections were rigged or the previous elections were just trying to
point out that the Supreme Court's verdict itself doesn't state that the opposition won the election,
but that's not always fully understood when you talk to people on the ground in my experience.
Second, in the run up to the judgement and the days after and senior judges have shown me this, they were sent images of guns to their mobile phones.
They received threats of death on an almost daily basis on WhatsApp, on other social media platforms.
There was a terrible incident in which there was a fire somebody shot at the deputy cop.
Partly, it seemed as an attempt to prevent the Supreme Court from changing the dates of the rerun
election and to intimidate the court into being more acquiescing to the government's wishes.
There were moves to push legislation through parliament ahead of the election to actually
circumscribed the Supreme Court's authority when it comes to dessert deciding electoral issues.
There was a speech made by Kenyatta very shortly afterwards in which he said a number of slanderous things about the judges.
There were a number of comments by members of the government in the two or three weeks
afterwards that implied that the Supreme Court would be fixed at some point in the future.
So judges found themselves very fundamentally in the firing line in a way that became very difficult and dangerous for them,
and they didn't back down. But there can be no doubt that they really understood and felt the force of the political decision
that they'd made and understood very quickly what a dangerous position they were now in.
Finally, I think the Supreme Court very quickly became quite frustrated with the situation they had nullified the election in some cases.
I think if you talk to the judges believing that there was going to be a significant transformation,
that the electoral commission would be able to make improvements that while everything I would contest that we
would have a more legitimate second round that that would be good for the country in terms of national unity.
And this would set an important legal precedent that would take us forwards.
And the ABC would have to do a better job with transparency in the future. And yet, as we know, the court has no purse.
It has no soul. It has no capacity or no authority over the electoral commission.
It was unable and in some ways, quite rightly, to specify the changes that the ABC needed to make in order to have a legal election.
It was not able to say, for example, whether or not electoral technology should be used.
The same technology should be used exactly how it should be used.
And the limited time between that election and the next election meant that it was always going
to be implausible to solve really fundamental issues with the political and electoral culture.
As a result, Raila Odinga boycotted the election on the second election, ended up in many people's eyes, being no more legitimate than the first.
So now we have a Supreme Court sitting today who, on the one hand, have made this world leading precedent setting decision.
But on the other hand, rumour has it a little bit unhappy that they made it and the way it played out.
Some people have even suggested that they might make a different decision if they had been asked to, you know, today with the benefit of hindsight.
What are the pros? I think the proof is that the court has survived. There have not been any direct attempts on the court.
There have not been any further shooting incidents against judges.
We have seen the court pull through, albeit wounded, and that shows that the court can be independent and survive the political onslaught.
But I think the downside of this in terms of the sort of informal precedent if we think about it that way rather than the legal precedent,
is that in many ways, this experience might have made the Supreme Court less likely to take as equally a difficult decision in the future.
And actually, in some ways, the long term implications in Kenya might be a less activist Supreme Court rather than emboldening judicial activism.
Thank you. Thank you very much. Really interesting insights from open corners and some of the interesting things that
are happening now is that the parliament cut off almost by half the judiciary budget,
only to reverse it to a day ago with something just to prove who has the muscle as it were.
So I think I'd like to invite the panellists to kind of give the.
Feedback on what has happened and was was the second was the rerun legal?
What do you see? The virtue of Nick is that he can explain complex realities in in just a paragraph in.
And I think he spoke more like a lawyer, and I was speaking more like us political scientists who say, yes, he destroyed.
It was it was more legal and those errors were not there.
But from the social point of view, we perceive it was not really legitimate, meaning Rila misinterpreted or miscalculated, he steps.
He said, I am withdrawing because if I withdraw, then you cannot have the election.
But the court the very same day or they before or after, I don't remember they gave you the possibility of our court to participate in the election.
So who do of know the only candidate and the election went ahead?
Of course, I visited several voting polling stations on that day and the window.
So OK, only very few voted. We don't know.
Well, I don't know if those numbers perhaps, you know, if those numbers were more or less accurate.
But certainly, I mean, who who was going to win by 98 percent of the vote, and that's more difficult to get done.
But from the social point of view,
we perceived that the election was not really legitimate and was the way of legitimising something that was going to happen anyway, so to speak.
So, yeah, I think just simply that. So, John, in the context of the BVI,
the Building Bridges initiative at this micro nation still going to be playing out in the in the next election cycles,
are we going to see the Supreme Court and other courts being less involved in the kind of aggressions between the micro nations?
Yeah, I think you remember I didn't even answer your first question.
There are these macro issues are still the still compete. The competition is still there.
I must, however, confess that Kenya has been evolving almost forward.
If you asked me, it's been moving very much forward in terms of reforms.
And if you if you stick to the democracy, you know the language of democracy.
Elections have been becoming better.
In fact, I am convinced that apart from the presidential elections, all the other elections are done with integrity.
And I think you can win an election fairly by just campaigning all the other positions.
The only position that is still problematic is the presidential, because that's where the stakes are.
I'm convinced, therefore, if I was to answer the first question before I come to second, I'm convinced, therefore,
that what has changed in Kenya is that there has been some reforms in society,
some gentle understanding that other nationalities we can work with these rules.
And that is still happening, but not fully. And the complaint to the earlier presentation,
my earlier statements was that we had expected the court to resolve underlying problems when society had not ripened for that.
But society has ripened for all the other elections so far except the presidential election.
I believe the judiciary is as strong as the executive wants them to be.
That's my position. And so the judiciary in Kenya has reached a stage where it can question many things.
And of course, my state can now even dare council opposition election.
I think we have that level. So the second question, though, that you ask about nationalities and where they are.
I think less notice in Kenya have sufficient consensus on many things now.
Far better than many other African countries. But I'm not sure that consensus reaches the presidential election.
If you look at the by elections in Kipre just yesterday and the violence that visited that particular polling,
you should be able to see that we are still in danger.
We are not very safe yet, especially because I presented the presidential ballot in 2022, in my view, in a sense, and therefore we are not safe yet.
But I think there's some positives because all the other elections appeared to have been sorted, except this one.
And I think we could move forward on that. On the BBC, finally, I think that the reforms are not being undertaken from below.
I think that the reforms are informed by above power hungry politicians and I believe Israel and
hooking up are probably the one to to do about Putin and Kenya just don't know what they want to do.
And those might not be shared by the ordinary populations, and that might also be a problem in and of itself.
Mm-Hmm. Mm-Hmm. So just in closing, and then we'll open up to the Q&A.
Nick, I mean, there have been other cases of similarly to not the similar outcome in Uganda,
in Ghana, in Cote d'Ivoire, which ended up in a whole of the international debacle.
But what is it about the Kenyan case that actually tipped the scale in a
different direction than what happens in most election contestations in Africa?
I think I mean, I think a couple of things, as I was saying, I think, you know, the nature of the Supreme Court Chief Justice,
his personal background, the determination of that court to see themselves as protecting the Constitution.
Fundamentally, I think a number of those issues came together.
I think it's perhaps true. I mean, some people suggested this.
I don't have evidence for it that the the ruling party and the ABC were fairly complacent,
that all previous election petitions had been rejected and therefore they didn't really feel they needed to try very hard with this one.
They were quite complacent in the way they rejected the request to open up their servers and other things, and that that angered the court.
There was a sense of contempt for the court, and the court felt that if it had accepted the election result on that basis,
it would have kind of undermined its own authority. I think one other thing, though we haven't talked about I just wanted to put on the agenda,
is we've had quite a narrow discussion in a sense about what it means to rig an election.
We've talked about essentially fixing the vote at the very last minute as a result of
problems with the technology of ballot box stuffing or simply adding zeros to numbers.
But of course, there are lots of other problems with some of these elections.
I mean, we have high levels of campaign expenditure, we have high levels of vote buying,
we have intimidation, we have the assassination of the acting head of it, as you were talking about earlier.
All of this created an atmosphere of violence around certain aspects of the campaign.
We have, you know, media ownership, which is often problematic, not so much in Kenya, but in other countries.
And I think one of the things that is true is that if we were to actually stretch out our understanding
of vote rigging and manipulating elections a bit broader to encompass all of these different aspects,
we would have very good reasons to think that, you know, there were many more problems in the election.
And one of the things that hasn't yet happened is some of those issues haven't really yet been judicial ized.
We very rarely see anyone prosecuted on the basis of vote buying.
You know, we very rarely see people prosecuted on breaking campaign finance regulations where there are campaign finance regulations.
So I think although there has been this process of judicial ization,
it's also important to keep in mind how many abuses are simply not captured and prosecuted.
Every single election and that also sways the election in favour, usually but not always of the ruling party.
So we cannot guarantee success,
but we will definitely guarantee failure if we give up on the process that they some good that came out of the case and they some good that
can still come out of the constitutional process and the Supreme Court independence that the courts did manifest in that in that ruling.
And we do hope that in the work that we will be doing from both ground up and
creating societies that are more honourable to each other at the same time,
creating the environment within which our courts can operate with more independence will definitely be what we will probably
drive us to a safer and better electioneering process come 2020 if we do not probably have a bye elections before then.
So if you agree with me that this was an incredibly interesting discussion, please give a round of applause to people.