By Daniel K. Kalinaki
Posted
Thursday, March 31
2016 at
01:00
The Supreme Court will today deliver its judgment on the petition filed by Amama Mbabazi challenging the outcome of the February 18 presidential election in which the Electoral Commission declared candidate Yoweri Museveni the winner.
It is not clear whether Mr Mbabazi will be in court to hear the outcome of his petition but it is almost certain that Kizza Besigye, who came second in the results announced by the EC will not, seeing as he has been under house arrest since just after Election Day.
This is not a footnote to this case. This – the fact that the two leading candidates were under “preventive arrest” as election results were being declared, among others, – is the invisible elephant in the courtroom. To understand this, we need to go back to previous elections, but in particular to 2006.
If you close your eyes for a minute and think of an electoral illegality, it probably took place in that election. There were threats against Opposition candidates, ballot stuffing, ghost voters, ghost polling stations, missing voters on the roll, unusually high turnout, et cetera. On the eve of the election, a government functionary shot at a crowd of Opposition supporters, at high noon, killing two and maiming three (he was only brought to trial three years later when this newspaper exposed attempts to throw out the case, and sentenced to 14 years). Besigye, leading Opposition candidate then as now, lost half his campaign time in jail, battling two charges, one of which a judge ruled had been trumped up with the sole purpose of derailing his candidature.
Yet when Besigye and his lawyers turned up in court to challenge the election, they came along with a statistician from Makerere University and attempted to show the court the ‘substantiality’ of these irregularities on the outcome.
This, in my unlearned view, was a mistake. The framers of the law envisaged a situation whereby, for administrative or other reasons, some voters may be unable to vote, where some ballots are destroyed or stuffed. For instance, if voting materials did not arrive in sub-county X with 50,000 voters, it would not make sense to annul the election if the winning margin was two million votes.
But how do you measure the number of votes a candidate loses by being unable to campaign for half the allotted time? How do you measure the lost opportunity if a public broadcaster funded by taxpayers gives airtime to only one candidate at the expense of rivals? Can one claim that they could have converted a million voters if they had been allowed equal airtime, and can this claim be proven statistically? Can one count the number of would-be voters who decide to stay at home or vary their voting intention after witnessing election-related violence?
This, in my view, is a qualitative argument, not a quantitative one. It is a judgement call, not a mathematical equation. In the famous words of US Supreme Court Justice Potter Stewart who was being asked to determine whether scenes in a movie could be classified as “hard-core pornography” said, of pornography, “I know it when I see it”.
We can tick off a checklist in seeking to determine whether an election was held in accordance with the law, and in identifying those events that fell outside the law but determining the effect on broad and entrenched illegalities are a subjective matter of conscience and common sense, not calculus. Substantiality is not synonymous with statistical impact, for you can’t put a number to that which you can’t count.
I will eat my boots if the Supreme Court rules to annul the election – I think the evidentiary threshold on many of the blatant violations was not met and the arguments by the petitioner’s lawyers could have been more cogent – but I hope that the court will roll back the statistical requirement for substantiality on things that just can’t be measured.
Justice might be blind, limiting itself only to the law, facts and evidence, but if the honourable men and women of the Supreme Court delicately walk around in the dark feeling that huge thing that has been brought into their midst they surely will be able to tell that that, there, is the elephant in the room.
Mr Kalinaki is a Ugandan journalist based in Nairobi. dkalinaki@ke.nationmedia.com Twitter: @Kalinaki
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