The Court Ruling on the Elections in Kenya: A Precedent for inter-State Disputes?
Gerhard Erasmus, tralac Associate, comments on the ruling by Kenya’s Supreme Court to overturn the re-election of President Uhuru Kenyatta, citing irregularities in the national election held in August 2017
The Rule of Law is what it says it is. In its most basic form it contains the principle that no person and no exercise of public power is above the law. And the extent of the protection it offers can be ascertained and be enforced through due process and judicial review.
The rule of law is often violated. It is not a favourite of dictators and anarchists. That is why a democratic society will be one where the judgments (including inconvenient ones) of the courts as to what the law means and requires, will be respected. In doing so legitimacy is bestowed on governments and their transactions.
The Kenya Supreme Court recently nullified the national elections held in August in that country. It found that irregularities had been committed by the election board and that new elections must be conducted within 60 days. This ruling, and the acceptance of the judgment, have been hailed as a milestone event. It has been noted that the nullification of a national election would be an extraordinary event anywhere in the world. One commentator described it as a first for Africa and “the most important democratic moment in Africa since the first non-racial elections in South Africa in 1994”.
These developments bode well for democracy in Africa. Hopefully the new Kenyan elections will be peaceful. The threat by President Kenyatta to “fix this court”, is unfortunate; hopefully it will turn out to be no more than a sign of passing frustration.
Could this development serve as a precedent for intra-state disputes in Africa? It would be a very constructive development if it does. To mention one obvious area where the adjudication of disputes can bring much needed benefits: African governments do not employ the courts of law or binding arbitration when it comes to the implementation of their trade agreements. They do not litigate against each other. Territorial disputes are about the only instance where they will refer differences to an international court or to arbitration. The consequences are unfortunate. Those doing business in Africa and engaging in cross-border commerce are denied the benefits of the rule of law. It will make them hesitant to expand in areas and transactions where legal certainty and the knowledge that independent courts will rule on differences, become important calculations. Consumers and vulnerable communities too are denied the protection of basic rights and fairness.
Modern trade agreements are rules-based. This brings the advantages of certainty and predictability. Once the law has been clarified, investors and private firms will know where they stand. It will bring the knowledge and confidence that their future investments and efforts are protected by the independent application of the applicable law. Corruption and bribery not only result in lack of transparency and impartiality; the inevitable costs are passed on to consumers or result in other detrimental consequences such as irreparable damage to the natural environment.
The members of the World Trade Organization (WTO) regularly employ the services of the Dispute Settlement Body of that organization to settle disputes about the interpretation or implementation of WTO agreements. These disputes frequently concern sensitive domestic development plans and national economic policies. The advantage is that once a ruling has been given the parties will be able to continue with mutual trade and the implementation (after adjustment to the dictates of the law) of national policies.
The many African members of the WTO have accepted WTO rules on dispute settlement, but they do not litigate in Geneva, nor in the regional courts which form part of the Regional Economic Communities (RECs) in Africa. It is said that litigation against another (African) government is offensive; disputes can be resolved through consultations. The truth is that this seldom happens. Zimbabwe’s frequent violations of its commitments under the SADC Protocol on trade go unchecked. Decisions in the institutions of the RECs are taken on the basis on consensus, resulting in political stalemates.
Dispute settlement is not an end in itself. In the context of the present discussion it is the means towards optimal conditions for trade and economic development. There is no effective alternative to the rule of law. It brings the many obvious advantages mentioned above, to inter-state transactions too. Sadly, politicians and governments only occasionally share the same conviction.
The bold decision of the Kenya Supreme Court and the acceptance by the candidates who will face the ballots box again, could be an indication of change. It will hopefully inspire political leaders and governments to bring the rule of law into the arena of trade and economic governance too. We all stand to benefit.
 Greg Mills Kenyan court takes giant step forward for Africa, Rand Daily Mail, 6 Sept 2017. https://www.businesslive.co.za/rdm/world/2017-09-06-kenyan-court-takes-giant-step-forward-for-africa/
 See for example, the tralac Trade Brief, How do the Southern African RECs compare as Rules-based Arrangements? https://www.tralac.org/publications/article/10135-how-do-the-southern-african-recs-compare-as-rules-based-arrangements.html