The Supreme Court judges who made the 2013 controversial ruling. [Photo/ CTV News]
(The writer is an Advocate of the High Court)
The solution of pure legal problems is done in courts of law. NASA will tomorrow file a presidential election petition, the second of its kind, challenging the declaration of Uhuru Kenyatta as the president-elect.
The election petition evokes religious problems that require redress. For how else will you explain failure by “Joshua” to lead his flock across the Red Sea?
Judicial daggers have been now unsheathed and sharpened, a legal Armageddon of titanic proportions is unfolding right before our eyes.
In our maiden post, we analysed the philosophy that defines the current Supreme Court of Kenya and in the coming days, we will analyse the procedure of filing presidential election petitions, review the evidence tendered by the petitioners, and ultimately examine the decision of the Supreme Court once it is rendered.
With the benefit of hindsight, my friends in the legal fraternity have opined that the Supreme Court’s determination is predictable. I disagree. They base their views on the 2013 Supreme Court ruling where the court acknowledged that though “the conduct of the presidential election was not perfect”, the irregularities “were not so substantial as to affect the credibility of the electoral process”. In dismissing the 2013 petition, the Supreme Court further held that “no credible evidence had been adduced to show that such irregularities were premeditated and introduced by [IEBC]”.
Despite the above unfortunate statements from the Supreme Court, it is not lost on us that in 2013, unlike now, the stakes were higher, the life, limb and liberty of President Kenyatta and his deputy William Ruto were arguably depended on their winning the presidency. It is against this backdrop that the Supreme Court’s exhibition of distinctive timidity should be understood.
Even more, the court was under extreme negative pressure from within and without the government. Indeed, throughout the hearing of the petition, the Supreme Court was reminded that it was in its infancy and accordingly ought to exercise judicial restraint. And judicial restraint it did exercise. This amorphous monster that is judicial restraint!
The above brief background to the 2013 presidential-election petition makes it look a lot more complex than the petition that NASA is seeking to file challenging IEBC’s declaration of Uhuru Kenyatta as the president-elect. In reality, however, if Raila Odinga’s statement of Wednesday is anything to go by, the 2013 presidential petition was not as complex as the petition that NASA will be filing. Without pre-empting the allegations that NASA will be levelling against IEBC, my view is that the 2013 presidential petition was a lot simpler. In any event, the 2013 petition was determined on mere technicalities.In an ideal independent society, courts determine cases based on evidence tendered (and not on evidence not tendered as was the case in 2013) and the applicable law. This is what is universally referred to as independence of the judiciary which was, thankfully, strengthened by the 2010 Constitution.
Previously, the judiciary was like an appendage of the Executive arm; it was haemorrhaging from favouritism, corruption, patronage and fear. Judicial officers literally had to look over their shoulders every time they rendered a decision that was not welcome by the powers that were. Indeed, even after the enactment of the 2010 Constitution, and though the judiciary now exercises appreciable levels of independence, former CJ Willy Mutunga is on record lamenting that governmental systems (including the judiciary) are controlled by some vicious and invincible mafia. I do not know where these mafia reside but from the word in streets, the mafia have permeated every sector of our government. These clique call the shots like the great Don Corleone in Mario Puzo’s the Grand Father.
If left to operate freely, free from any fear or favour, the Supreme Court is capable of being our “shield and defender”. And it is on this note that I opine that all is not doom and gloom. We have made significant constitutional strides since 2013, the Supreme Court is no longer in its infancy -- it is now in its puberty – powerful and dependable. It has been weaned off the infantile timidity that was evident in 2013. New entrants have joined the court who can tilt the scales towards justice. The long arc of justice has started pending towards truth and right.
It is for the foregoing reasons that I am optimistic that the court can and will rise to the occasion. It has been said that this is the time for the Supreme Court to ‘redeem itself from the mistakes of 2013’. Get me right, I do not in any way purport to say that the Supreme Court will redeem itself if it rules in a particular manner. Far from it. My point is that this is special constitutional moment that the Supreme Court has been afforded to flex its muscles, build jurisprudence, and give direction on how future elections are to be conducted. In any event, the Kenyan judicial systems are adverbial – you either win it all, or lose it all; you either score 100% or your score 0%.
Judicial precedent has been established: that where electoral irregularities and malpractices are not as material as to affect the credibility (and outcome) of an election, the Supreme Court will only give a slap in the fist and life goes on. Is it then worthy it petitioning the Supreme Court? The good think is that the Supreme Court is not bound by its previous rulings, and it is at liberty to depart from its judgment as and when circumstances dictate. I opine that in 2013, the court was still crawling, it was still finding its steps in the judicial landscape. Fast forward, it is a now a fully grown teenager. It should be riotous, it should deviate from the norm, rumble like a dragon, and deliver justice whether heavens fall.