Odinga, (left) Kenyatta

By New Independence Group

Though it is now being hotly contested by President Uhuru Kenyatta, the recent decision of the Kenyan Supreme Court nullifying the controversial August 8 presidential election of that country and ordering a rerun, is proof-positive that all hope is not lost for the Black Continent.It is also, however, a sad reminder of the parlous state of justice delivery in Nigeria, the putative giant of the continent.

With Kenya thrown into turmoil after the much-disputed Presidential election results were announced, the aggrieved opponents of President Kenyatta turned to the judiciary for succor.It is heart-warming that they received the succor that they sought, unlike their counterparts in Nigeria in almost four decades of election disputes at the Central level, where the interests of the ruling party and that of an incumbent president are interwoven, and in conflict with the destiny of a nation and its beleaguered people.The Supreme Court, Kenya’s highest judicial chamber, did not disappoint the Petitioners, their country, the Black race, and indeed, all lovers of democracy. It is therefore no surprise that the Kenyan court has since been receiving accolades from the global community.

Cited in the case as petitioners are Raila Amolo Odinga and Stephen Kalonzo Musyoka while the 1st to 3rd Respondents are the Independent Electoral and Boundaries Commission, chairperson of the commission, and Kenyatta.The court held that it was “satisfied that the 1st Respondent committed irregularities and illegalities inter alia, in the transmission of results.”It therefore held that the election “was not conducted in accordance with the Constitution and the applicable law rendering the declared result invalid, null and void.”It consequently issued a declaration “that the 3rd Respondent (Kenyatta) was not validly declared as the President elect and that the declaration is invalid, null and void”.The ordered that a fresh election be held within 60 days of the judgement.

The New Independence Group (NIG) notes that with the judgement, peace has returned to Kenya which had been thrown into spontaneous street protests after the controversial result declared the incumbent President Kenyatta as re-elected.We praise the Kenyan most senior court for the courage exhibited in the judgement, a rare occurrence in Africa where politics is generally regarded as a call to war against opponents, and elections are seen as mini-wars for power acquisition,where people of opposing political tendencies and support routinely lose lives and limbs while the courts look away.

It is a matter of concern for us at the NIG that, in Nigeria the courts have not displayed the forthrightness and fearlessness, especially in presidential elections, as demonstrated in Kenya, even when the facts appear simple and straight-forward, to the dismay of litigants. Two examples will suffice

In the Second Republic, which commenced in 1979, the election dispute involving Chief Obafemi Awolowo, the Presidential candidate of the now defunct Unity Party of Nigeria (UPN) and Alhaji Shehu Shagari, the Presidential candidate of the defunct National Party of Nigeria (NPN) was decided by justices, headed by the nation Chief Justice, Justice Fatai Williams, who declared, most curiously, that the ratio decidendi of 12-two-thirds majority states in their findings must not be cited in any subsequent legal dispute.Pray, what could be more destructive of a judgement if those passing it admit, and rule, that the reasoning for it could not hold in future cases?Even since the return of civil rule, the resolution of election disputes has not fared better.

In 2007, the Supreme Court admitted massive electoral fraud, but refused to order a rerun. The judgement was so weak a basis for a political mandate that the beneficiary of the electoral heist and judicial collaboration, the late Umaru Musa Yar’Adua acknowledged in his inaugural speech that the process through which he assumed office was faulty. He therefore set up an Electoral Reform Committee, headed by Justice Mohammed Uwaise

While we concede of the fact that the Nigerian courts have passed commendable verdicts, especially in cases of governorship and legislative assembly elections, the same boldness and judicial integrity has never been displayed in Nigeria’s presidential elections.It thus appear that the commanding height of our judicial system is always eager to uphold the status quo, lacking the courage to uphold its independence, thereby uphold truth and justice for the aggrieved who ran to it for restitution, and for our dear country, in general.And, when and where the apex judicial body displays malleability and lily-liver as has been the lot of presidential election disputes in Nigeria – and indeed several other civil and criminal matters – the end of justice fails to be served.Yet, it is not in error that the eyes of the proverbial Lady Justice — the symbol of justice delivery –are covered. It is to send a message of impartiality and boldness.

The several instances of self-help and mob action in Nigeria are a result of the failure of the judiciary to be fearless in the dispensation of justice, making the citizens come to the ineluctable but unfortunate conclusion that they will most likely be shortchanged by judicial officers who are beholden to the holders of temporary power.

The Nigerian Supreme Court will do well to learn from the Kenyan example, to restore faith in the judiciary and the justice delivery sector, in general.

• Signed by: Professor Akinyemi Onigbinde, Convener