BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)
A SIGNIFICANT court decision was handed down last week in a country that, broadly speaking, shares a common heritage with Malaysia in terms of its system of laws based on a written constitution. I am referring to the Supreme Court of Kenya declaring the election of a president as fundamentally flawed.
The incumbent, Uhuru Kenyatta, was re-elected as president with 54% of the vote. His main challenger, a former prime minister, Raila Odinga, received 1.4 million votes less.
Odinga petitioned the court to nullify the election – alleging that seven million of his votes were “stolen”.
The six-judge Supreme Court agreed and declared the election invalid. It faulted the Independent Electoral and Boundaries Commission, which was in charge of the vote, for having electronically manipulated the votes to hand Kenyatta a victory. The chief justice, David Maraga, ruled that the election commission’s irregularities and illegalities in the transmission of results and unspecified other issues “affected the integrity of the polls”.
The issue revolved around the transmission of the results from each of the country’s 40,883 polling stations and from 290 constituencies.
The forms depicting the votes had to be approved by representatives of the rival parties. And then scanned and electronically transmitted to a national tallying centre. There they were to be put online immediately so they could be crosschecked.
But the electronic system, apparently broke down. It had been overseen by an election official who was killed about a week before the election. Consequently, only the results, not the forms, were sent to the national tallying centre, often by text message. Resulting in the missing votes for Odinga.
The Supreme Court ruling was historic. Because never before had a court nullified the election of a sitting president on the African continent. All – including Odinga – were stunned by the decision. Hitherto, many Kenyans perceived the Supreme Court to be under government influence.
But the Supreme Court, which displayed considerable independence in recent years, accredited itself well. The judiciary seized the opportunity to truly show its independence. The country director for the National Democratic Institute – a non-partisan organisation that supports democratic institutions and practices worldwide – was quoted by The New York Times as saying that the case provided an opportunity for the judiciary to truly show its independence. And it measured up well – “showing fortitude and courage”. Is there a lesson from this for Malaysia?
There have been complaints of electoral irregularities much in the same vein as in Kenya. But these remain unproven. Until Bersih sponsored a Peoples Tribunal on the 13th general election.
The tribunal was presented with some 70 statutory declarations (statements on oath punishable with imprisonment if they are false) and heard the oral testimony of witnesses.
The tribunal identified several matters that impaired the conduct of free and fair elections. These included: Widespread irregularities of bribery and other inducements (at least in some places), some constituencies disproportionately outsizing others when they were meant to be approximately equal, registration processes violated on a large scale (person entitled and applying for registration denied, someone who does not apply is registered and a registered voter assigned a wrong constituency).
Also, there were violations involving breaches of procedures for custody of ballot boxes (including those for postal and advanced voting) and the counting and recording of information on designated forms.
The report by this tribunal, (available at www.bersih.org/report-of-the-peoples-tribunal-on-malaysias-13th-general-…) – comprising high-powered international and local personnel – castigated the electoral process as well as the Election Commission for the following failings:
•The elections playing field glaringly uneven;
•The determination of boundaries too much in the hands of the incumbent government;
•The registration process not sufficiently independent;
•The mainstream media too closely allied to the ruling party;
•The abuse of public resources in campaigning;
•Lavish and uncontrolled campaign financing;
•Abuses in the promotion of ethnic suspicion and hatred to win votes;
•Violation of access of party agents to counting and permitting effective domestic and international observance;
•The police unresponsive to complaints of violations; and,
•Failings of the Election Commission.
•The final conclusions of the tribunal were damning.
First, “Overall – taking into account the macro-level of apportionment, there is some reason to believe that the ‘wrong’ party was declared to have won the 2013 election”.
Second, many of the shortcomings were both systematic and systemic. In short, the election violated all the integrity parameters of free and fair elections.
Significantly, the report expressed dismay that almost all election petitions challenging the results on the basis of serious violations were dismissed by the courts on technical grounds. This, said the tribunal, “does not help the court’s reputation as a place where justice can be sought. If an election court is to be the guardian of the legal framework of the electoral process, an election petition should be disposed of on the merits after a full trial …”
This would require a potent display of judicial independence, to dispel any perception that the courts would succumb to any pressure from political leaders.
Does the Kenyan Supreme Court’s bold unprecedented posture – which broke from its past subservient rulings – provide forceful inspiration for those conducting elections, as well as the courts?
Gurdial is a former University of Malaya law professor, was lead counsel in the People’s Tribunal on Malaysia’s 13th General Election. He is currently a legal consultant as well as Deputy President of HAKAM