By Andrew Mwenda
The Kenyan Supreme Court is playing with fire. They have not properly thought about the consequences of their decision to nullify the presidential election. Essentially the court has overthrown a government – something that has never happened before.
Here is the situation: when the election is repeated, what guarantee is there that the same irregularities will not be repeated this time? If the irregularities are repeated and Raila returns to the same court, will they nullify the election again? If they do that, what is the end game? More critically, can the political institutions of Kenya withstand the stress resulting from such nullifications and repeated elections?
Here is my prediction: the supporters of Uhuru and Ruto, both within and outside of the state, are not going to accept to lose. So they are going to be more inclined to use all means to win. The second election is likely to have more irregularities than the first. The supporters of Raila are now highly energized and will not accept anything except victory. This is means that the Supreme Court has put kenya on a slippery slope.
The most likely outcome of this court decision is not to improve the quality of the election. Instead it will increase the incentive on the incumbent to rig and incentives on the losers not to accept the results. This was not an issue of right and wrong. It was a matter of political maturity. The decision of the Supreme Court is much more political than it is legal and the Supreme Court judges of Kenya failed to understand that they are dealing with a serious political issue with dangerous ramifications.
If the court has to make an error, it should have made it on the side of caution. What they have done is reckless, an un-calculated risk whose consequences may be dire to that country.