Independent third world judges lead the way

The stunning news, unprecedented in Africa’s history, broke on Friday morning that the Kenyan Supreme Court had overturned the results of the August 8 elections which the incumbent president, Uhuru Kenyatta, 55, had won with 54 per cent of the vote. The six-bench Supreme Court ruled four to two in favour of a petition by Raila Odinga, 72, running and losing for the fourth time, with 44 per cent of the vote, who claimed that electronic voting results were hacked in favour of Kenyatta. New elections were ordered in 60 days.

Chief Justice David Maraga, in delivering the ruling said: “After considering the evidence, we are satisfied that the elections were not conducted in accordance with the dictates of the Constitution.” The court said that the elections commission committed “illegalities and irregularities…in the transmission of the results,” the details of which will be set out in the written judgment to be delivered in 21 days.

The decision of the Kenyan Supreme Court, already held in high regard in Africa and elsewhere, is therefore a remarkable and historic triumph for judicial independence and integrity. Hopefully the judges will maintain their independence and ignore the distasteful reaction and threats of President Kenyatta who called them “crooks” and threatened that since he is still president, they will have to deal with him.

Under the Kenyan electoral rules, two documents are used to validate the election results. One is from each of the country’s 40,883 polling stations and the other is from the 290 constituencies, each recording the results and approved by rival parties. They are scanned and electronically transmitted to the national tallying centre in Nairobi where they are immediately put online and can be cross checked. But the electronic system broke down and the results were transmitted by text messages.

When Mr Kenyatta was declared the winner, hours after the voting ended, none of the forms from the polling stations had been posted online. The electoral commission later reported that 10,000 forms were unaccounted for. A third of the forms which were presented had no security features such as water marks or serial numbers, leading to the conclusion that they were probably fraudulent. There are many lessons for Guyana relating to both the electoral, where the introduction of electronic methods has been suggested to deal with delays, and the judicial, where support for and strengthening of the judiciary are still insufficient to protect it from political pressures.

On August 24 news emerged from India that the Indian Supreme Court had ruled that the right to privacy is a fundamental right protected by the Indian Constitution even though it does not specifically refer to such a right.

The first significant case in which the right to privacy emerged is the US case of Roe v Wade, decided in 1973. This case affirmed a woman’s right to an abortion on the ground of her right to privacy which was protected by the fourteenth amendment to the US constitution. There is no specific right to privacy in the US Constitution but a part of the fourteenth amendment was held to have conferred such a right. The operative part of the clause states: “…nor shall any state deprive any person of life, liberty, or property, without due process of law…” Justice Blackmun, who delivered the opinion of the court, which has remained controversial, said: “The Court has recognized that a right of personal privacy…does exist under the Constitution…This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action…or…in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

In a 547-page decision on August 24, the Indian Supreme Court of nine judges overruled previous decisions, went further than Roe v Wade, and held in the Aadhaar Case that notwithstanding that the India Constitution did not specifically protect the right of privacy, nevertheless Article 21, which protects the right to life and personal liberty, confers a fundamental right to privacy under the Indian Constitution. “The right to privacy is an integral part of the right to life and personal liberty guaranteed in Article 21 of the Constitution.”

Long regarded as independent and highly respected, the Supreme Court rejected the government’s argument that the right to privacy was not constitutionally protected and ruled that the “Aadhaar” biometric project under which the government had collected biometric and demographic data of 1.17 billion persons, ostensibly to be able to plug leaks in India’s social welfare schemes, violated the fundamental rights to privacy of citizens under Article 21. The government intended to use the data for a host of other services and companies were also hoping to use it. The court, in a decision of worldwide implications in the information age, held that a wide range of choices in new and numerous facets of life emerging from new technologies, far exceeding anything hitherto considered by any court, is protected as fundamental rights to privacy.

Like the United States and India, the right to life and personal liberty are protected by Articles 138 and 139 of the Guyana Constitution.

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