Sudanese are drunk on freedom

Sit in for army headquarters

Looking worried Abelmonim stands with his two young daughters among the hundreds of thousands of demonstrators in front of the military complex in the Sudanese capital Khartoum. “My daughters forced me to come here,” he says. “They want to experience the revolution.” The girls, in traditional pink robes only showing part of their faces, giggle amusingly. The power struggle between the civilians and the soldiers who overthrew dictator Bashir earlier April is continuing. And with that also this sit-in. “Dad, can we come again tomorrow,” the daughters ask.

Further up in the crowd, anger strikes among a group of women in tight pants. They want an immediate transfer of the military’s power to the civilians. They clench their fists, turn to the Department of Defense and chant, “We won’t let the army steal the revolution.” They turn their anger against military ruler Abdel-Fattah Burhan. Until recently, the demonstrators thought that he would swiftly transfer power to the citizens, but that has not happened yet. The military council summoned protesters, who have been participating in this sit-in since the beginning of April, to clear the field and clear the roads ‘immediately’.

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Hunted down after leaving al-Shabaab

Somali refugees Photo Petterik Wiggers

Abdul (35 years old) can no longer sit still. He was a fighter once in one of the most brutal terrorist groups in the world. “Al-Shabaab messed up my life. My head, my heart, my chances. Everything.”

Abdul, who for safety reasons changed his name, constantly fiddles with his breast pocket. Every warrior from the Somali terrorist group keeps a grenade there to blow himself up in case of capture. “I always feared getting stuck behind a branch and accidentally blowing myself up.”

Abdul is Kenyan and was recruited in the Majengo slum of the Kenyan capital Nairobi by al-Shabaab in 2011 to fight in Somalia. “I wanted employment and the recruiter promised me a job as a driver.” Hundreds of Kenyans have been traveling to Somalia in recent years, from the Kenyan coastal strip and from the ghettos in Nairobi.

About a quarter of the Kenyan population is Muslim and lives mainly on the coast and in the poor lowlands that extend to the border with Somalia. Al-Shabaab controls territory in Central and Southern Somalia and set up a network of cells in Kenya. The terror group recruits poor young people in Kenya and offers them a salary. When they die, their families receive $ 500 and the deceased awaits 72 virgins in heaven.

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If elections changed anything, they would have abolished them



If elections changed anything, they would have abolished them[2]. 

Every five years the English bourgeois political parties ask the proletariat to choose which party they would like to oppress them for the next five years![3]

 It is indisputable that law has its economic, social, cultural, and political foundations in the broader power and property relations in society. However, electoral disputes, ipso facto, provide a very direct and immediate interface between politics and law. Few disputes insert the Judiciary in the front door furnace of politics than election petitions – and so does this paper.

Electoral litigation are sui generis in character, both in regularity and regulations or rules. Consequently, many jurisdictions, Kenya included, recognize that they do not strictly fall within the ambit of conventional civil law, and therefore require different sets of regulations and rules to guide their determination. A few questions linger with respect to electoral disputes: One, should courts even entertain them, or do they fall within the purview of the political and policy questions which are not justiciable, and to which, therefore, courts should be restrained? Two, can African courts adjudicate electoral disputes, particularly presidential ones, and institutionally survive the corrosive effect of African politics? Three, what is the emerging body of jurisprudence and what is their real jurisprudential and juridical value? What is the role of the Bar? What is the place of electoral management agency, the political parties and citizens? These are some of the issues that this presentation addresses.

Elections are an important pillar of any democracy. The right to vote must not be taken lightly. The duty to protect that vote is also an important democratic imperative. As Francis Fukuyama, in tracing the origins of political order in society has noted, ‘[T]oday the dominant form of procedural accountability is elections, preferably multi-party elections with universal adult suffrage’[4]. When, as Chief Justice, I presided over the swearing in of Kenya’s electoral commission members on 14th November 2011, I spoke at length on the importance of elections, and essentially said that subverting sovereign will of a people is a crime more serious than treason, as it is a crime against society as against the state. I stated that:

‘[T]here is no higher crime an individual, an institution, or a group of people can commit than one that subverts the sovereign will of the people, or whether through incompetence, negligence, or design make the expression of that will inarticulate’.

However, there is an emerging – and a rapidly entrenching – notion in Africa, that electors or voters no longer decide who their leaders are – whether in party primaries or the general election itself. That leaders are decided either by unaccountable party barons, or by manipulated electoral management agencies, or by the security forces, or by technology and data companies, or by the courts. In this continent (and, admittedly, America is beginning to show these signs too), there is a widening chasm between voting and counting – a strange paradox of inverse literacy, where peasants and workers (most voters) know how to peacefully cast their ballots during the day on Election Day, but graduates and computers (technologically-aided presiding and returning officers) ‘forget’ how to count on election night. There is urgency in changing this perception and/or reality and reclaim and reaffirm public faith in electoral politics.

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