In Summary
  • On 17 May 1954, against all odds and prognostics, Chief Justice Earl Warren delivered a unanimous ruling in the case Brown v. Board of Education of Topeka, Kansas.
  • There are four main reasons why nobody, neither NASA nor Jubilee nor independents, expected the Court to declare the elections null and void.
  • Meanwhile, President Kenyatta has been left in charge and there is no power vacuum but he is in legal limbo.

Oliver L. Brown wanted the best possible education for his daughter, Linda, a pupil of African descent in the third grade at a black elementary school in Topeka, Kansas.

Little Linda had to walk for one mile through a railroad switchyard to catch a bus and attend a distant school, even though a white elementary school, Summer Elementary, was only seven blocks away from her home.

In 1951, Oliver tried to enrol her at Summer Elementary, but the school refused to admit her on racial grounds. Summer was a school for Whites.

Oliver did not know what to do.

The leadership of the National Association for the Advancement of Coloured Peoples (NAACP), which had been founded in 1909, encouraged Oliver to go to court and other African-American parents joined him in the case.

NAACP was the oldest, largest and most widely recognised grassroots-based civil rights organisation in America.

Oliver’s peers ridiculed him. Oliver, they thought, may have been the only lunatic who did not know the courts were in favour of the system. The courts were white, and if his case reached the US Supreme Court, it would be judged by nine white men.

There was no Black person, no woman and no diversity.

To add insult to injury, the courts had consistently affirmed the rule set by the 1896 Supreme Court landmark case, Plessy v Ferguson. The Plessy rule upheld “state racial segregation laws for public facilities under the doctrine of separate but equal”.

Oliver lost in the District Court, where the Plessy rule was upheld and he could have gone wild, violent and irrational. After all, a great injustice was being imposed on him and his family on racial grounds.

But Oliver was wise; he decided to go to all the way to the US Supreme Court. On 17 May 1954, against all odds and prognostics, Chief Justice Earl Warren delivered a unanimous ruling in the case Brown v Board of Education of Topeka, Kansas.

Thus, the US Supreme Court made its most important decision in the 20th century, declaring that segregation of public schools was a violation of the 14th amendment of the United States Constitution, and therefore unconstitutional.

Oliver Brown’s persistence and tenacity won a case not for Linda, but for America and the world, where segregation was the norm.  

Just like Brown v. Board of Education, the case of Raila Odinga v IEBC and Uhuru Kenyatta seemed to be a lost cause. And just like Brown v Board of Education, in Raila Odinga v IEBC and Uhuru Kenyatta, Kenya’s Supreme Court has already made history. What an unexpected shock the Supreme Court had in store for the opposition, for the government, for Kenya and for the world.

A first in Africa, it will certainly be the first of many.

Nasa supporters will chant “Victory!” while Jubilee supporters will shout “Idiocy of a rogue court”. But this is neither victory nor idiocy and it is not about who won the elections, but about a process.

WHY SO UNEXPECTED?

There are four main reasons why nobody, neither Nasa nor Jubilee nor independents, expected the Court to declare the elections null and void. First, courts in Africa have traditionally been compliant with the Executive; they have been pro status quo.

This has allowed innumerable aberrations to find their legalistic justification through our courts. One example is the nullification of 600,000 votes in Côte d’Ivoire in 2010, which allowed the electoral body to declare the incumbent, Laurent Gbagbo, the winner.

Second, most judiciaries in Africa, and in most Third World countries, are not independent. Their independence is deeply compromised, either financially through budget constraints and cash threats, or administratively either through manipulative appointment procedures or weak tenure, or morally, by bribing judicial officers. 

Third, in most cases, it is extremely difficult to meet the high standards of evidence. Article 83 of the Elections Act places this standard higher than just a “balance of probabilities” but lower than “beyond reasonable doubt”.

In this regard, it was perhaps Pheroze Nowrojee’s presentation that tilted the view of the court. The Senior Counsel made a powerful point when he explained the “Bomas Triangle”, making an allegory to the Bermuda Triangle.

So, where had the Form 34As vanished? The IEBC had explained to Nasa in writing that they could provide form 34Bs, but not 34As.

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