It has been reported by the Nairobi News in Kenya that, following the Supreme Court’s nullification of the presidential elections on September 1, 2017, Kenya has joined an "exclusive club" of only four countries in the world that have had such elections nullified because the electronic electoral system had been hacked to favour the incumbent President Uhuru Kenyata.
New elections are to take place on October 17. Furthermore, the historic judgment delivered by Chief Justice Maranga has made this the first country in Africa to make such a judgment which, by its very nature, is politically controversial and unprecedented for the continent. It was further reported that only in Ukraine, Maldives and Austria has this occurred before.
In Kenya, President Uhuru Kenyata was re-elected last month with 54% of the vote, while his opponent Raila Odinga received 44%. Odinga petitioned the Supreme Court to have the elections nullified. Maranga’s judgment came as a shock in a country bracing itself for vigorous protests by opposition supporters.
According to the Associated Press, although at first Kenyata said he would accept the ruling of the chief justice and his court, he subsequently stated in an interview that members of the court were "crooks" and promised to "fix" the judicial system and warned the chief justice and the judiciary not to interfere with the electoral system.
He accused the court of overturning the will of the people after he had been declared the winner of the August 8 election. He said further that "we will come back and revisit the issue Going forward, we must fix it".
The Law Society of Kenya criticised the president’s statements as inappropriate coming from the head of state, who in terms of the constitution is a symbol of national unity and enjoys immunity from criminal and civil proceedings.
It is interesting to note the comment in an editorial view in The Mercury on September 4, "The real crooks in Africa", in which it was pointed out that Chief Justice Maranga was among the prominent jurists in Africa who attended a recent conference chaired by South African Chief Justice Mogoeng Mogoeng, that concluded that they as judges would have to stand up to corrupt politicians on the continent, no matter what cost.
These are indeed prophetic words as far as Kenya is concerned.
The Kenyan constitution, like our own, provides for a supreme constitution and an entrenched Bill of Rights. This gives rise to what is known as judicial review and the testing right of the courts.
This means that the ultimate and final word on the interpretation and application of the constitution in relation to all matters, including fair and free elections, is vested in the judiciary and not the executive or the legislature.
The testing right of the courts gives rise to a profound counter-majoritarian dilemma, in terms of which the courts are able to invalidate legislation, any conduct of officials and election results.
This by its very nature is highly contentious from a political point of view.
The theory and practice of judicial review has its genesis in the US, where the Supreme Court in interpreting the constitution first assumed the power of declaring congressional legislation invalid in the epochal case of Marbury v Madison.
Subsequently, this court assumed the authority to declare state legislation repugnant to the US Constitution in the case of Fletcher v Peck.
The establishment of judicial as opposed to legislative supremacy in the US has proved to be of profound jurisprudential and political significance in this country.
So, for example, in 1896, initially the Supreme Court legalised racial segregation in Ferguson v Plessy. As a result of this judgment, the notorious doctrine of "separate but equal" acquired political and jurisprudential respectability for more than 50 years.
In one of the most famous judgments of the 20th century, the US Supreme Court in 1954 reversed its previous decision in Brown v Board of Education, holding that "separate facilities for separate races were inherently inferior".
This latter judgment plunged the court into the maelstrom of political controversy and heralded the emergence of the historic Civil Rights movement in the US.
In our traumatic and tragic political and constitutional history, whenever the courts exercised such a testing right, the counter-majoritarian dilemma became an issue in the Transvaal Republic in Brown v Leyds.
In this case after Chief Justice Kotze had exercised the testing right, he was ingloriously dismissed by President Kruger, who declared that such a right was indeed "a principle invented by the devil".
When in the 1950 the erstwhile Appellate Division of the SA Supreme Court exercised the testing right in the famous coloured voters cases, great political controversy occurred.
In the present time the judgments of our Constitutional Court on the Nkandla debacle and secret vote of no-confidence reflect the inherent controversy of the counter-majoritarian dilemma.
This inevitable tension in the relationship between the branches of government, the judiciary and the executive, must be understood against the background of a liberal democratic constitution, found both in South Africa and Kenya, premised on the doctrine of separation of powers and the independence of the judiciary.
In a constitutional democracy, the executive is legally obliged to exercise its power in terms of the constraints imposed by the constitution. This applies to South Africa as much as Kenya and the US.
Although this is most certainly controversial, it makes our jurisprudence and that of Kenya interesting, and is an indication that democracy is working in both countries on the African continent.
George Devenish is Emeritus Professor at UKZN and one of the scholars who assisted in drafting the Interim Constitution in 1993