{UAH} Courts will not dare overturn presidential election, says scholar

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Courts will not dare overturn presidential election, says scholar 

By DENNIS ODUNGA
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It is not possible for the courts to overturn a presidential election and neither can they be a solution to civil wars in any country, a public forum was told Friday.

Prof Mahmood Mamdani of Columbia University and Makerere University's Institute for Social Research said the courts might fear plunging a country into a crisis.

He said the courts can only overrule a parliamentary election, something that left part of the audience contemplating whether Kenya's Supreme Court ruling that upheld President Kenyatta's victory was indeed based on evidence or the fear of chaos.

The scholar, who spoke during an event dubbed "University debate series" at Kenyatta University, said solutions to political problems did not lie in the courts.
The debate question was "Can courts end civil wars?"

The forum was sponsored by Nation Media Group in partnership with Kenyatta University.

Company chief executive Linus Gitahi and the university's Vice-Chancellor, Prof Olive Mugenda, attended.

In an apparent reference to the Kenyan situation where the President and his deputy are facing charges for crimes against humanity at the International Criminal Court, Prof Mamdani warned against the culture of taking political leaders to the courts.

"You cannot take a political leader to court unless you isolate them politically. You cannot find a political solution to a political problem from the courts," he said during the event moderated by human rights lawyer Betty Murungi.

Prof Mamdani said it was through legislation, the Constitution and negotiations that political issues could be tackled.

"Taking leaders to The Hague cuts the gains made previously as both sides of the political divide believe they are wrongfully targeted," he said. He said political leaders must be delinked from political crimes to enable them to lead reforms in their countries.

Prof Mamdani said viewing the world in terms of victims and perpetrators was not the way forward for a country determined to achieve social justice.

"Let's think of ourselves as survivors as opposed to victims and perpetrators whenever there is a conflict. Punishing 15 to 20 people at the expense of hundreds of thousands is not the solution," he said.

He said in a scenario where rights have been violated and atrocities committed, the solution lay in countries focusing on constitutional reforms.

Citing the case of South Sudan, he warned that reconciliation without reform could only lead to a ceasefire, which is a temporary solution to a problem.

He faulted claims that the International Criminal Court (ICC) was established to end impunity in the world.

"ICC is much about enforcing impunity for the big forces and their cronies. It's not about justice," said Prof Mamdani.

He said the ICC would not try the five permanent members of the Security Council with veto powers over the court's operations or their allies.

Prof Peter Kagwanja said transitional justice was a political process as opposed to a legal one and called for a mind shift on the role of courts in enhancing justice.