Kenyan constitutional order, has never been seriously contested.
The Supreme Court judges’ warning that the Supreme Court will nullify the outcome of the fresh election if the Independent Electoral and Boundaries Commission (IEBC) does not put in place mechanisms to ensure its purity does not bode well for the country.
It raises the spectre of unending litigation by those aggrieved by the results of the election, a situation that would further put the economy in turmoil.
The majority judges, in making their determination in favour of Nasa’s Raila Odinga, quoted Justice Thakar of the Indian Court of Appeal in the case of Ponnala Lakshmaiah v. Kommuri Pratap Reddy & Others, in which he said that “while it is important to respect a popular verdict and the courts ought to be slow in upsetting the same, it is equally important to maintain the purity of the election process.”
While the judges held that they have not lowered the burden of proof or made it easy to overturn the popular will of the people, they shifted the burden to the IEBC, noting that its failure to put in place a simple, verifiable technological system in the conduct of the 2017 presidential election, was the reason they voided President Uhuru Kenyatta’s victory.
“The petition before us was simple and to the point. It was obvious to us, that IEBC misunderstood it, hence its jumbled up responses and submissions. Our judgment is also simple, and in our view clear and understandable. It ought to lead IEBC to a soul-searching and to go back to the drawing board. If not, this Court, whenever called upon to adjudicate on a similar dispute will reach the same decision if the anomalies remain the same, irrespective of who the aspirants may be. Consistency and fidelity to the Constitution is a non-wavering commitment this court makes,” Chief Justice David Maraga said.
While it is true that disputes have in the past resulted in violence and derailed the economy, and hence every effort must be made to ensure they are credible, free and fair, the Constitution and the law lay a basis upon which results cannot be invalidated.
For instance, a petitioner must prove that alleged malpractices were enough to affect the outcome of the election to an extent that the person declared the winner could not have been declared so.
In the majority ruling, the four judges made their decision mainly by relying on IEBC’s failure to open its servers and provide call logs, concluding that it had something to hide.
In does follows that every petition brought before the Supreme Court ought to be treated on its own merit taking into consideration the evidence and the law.
It is ironical that the judges agreed that technology is not foolproof but, at the same time, went on to invalidate Uhuru’s win on the basis of mistakes affecting the electronic transmission of results.
It was apparent also that the majority judges reached their verdict without a thorough consideration of the entire bundle of evidence before them.
Had they done so, as Lady Justice Njoki Ndung’u put it, Having evaluated the entire bundles of evidence submitted by the parties,they would have found that each and every allegation
in the Petition was addressed to a satisfactory standard and where and if, the burden of proof shifted, the Commission discharged it satisfactorily.
She rightly pointed out that the threat by the majority to invalidate another election was unfortunate, injudicious and imprudent.
In her view, it is important for the courts to exercise restraint lest judicial tyranny takes over.
It is also worth of note that the majority did not find any evidence of widespread rigging, treatment of voters and intimidation of civil servants as the petitioners had claimed and both President Uhuru and IEBC officials were found not to have individually committed any offence.
When he was appointed, Chief Justice Maraga was seen as a conservative figure who would help stem the judicial activism that had crept into the Judiciary under Willy Mutunga’s watch.
However, from recent statements, including the one issued on Monday following the criticism and protests against judges since the September 1 ruling, they were very wrong.
In that statement, he railed against the Executive and Parliament, daring them to call a referendum to abolish the Judiciary if they had gotten tired of its independence.
No one disagrees that an independent Judiciary is one of the fruits Kenyans reaped from more than 20 years of struggle that birthed the Constitution of Kenya 2010.
However, while all the three arms of government are equal, they can only function for the good of the country if they have good working relations.
As Justice Jackton Ojwang said in his dissenting opinion, the Constitution, while safeguarding the Judiciary’s adjudicatory space, also entrusts certain governance-spaces to other agencies – primarily the Legislature and the Executive. This is the basis for the constitutional principle, the
separation of powers – a principle the validity of which, in the Kenyan constitutional order, has not ever been seriously contested.
By Sabina Chege, Woman Rep Murang’a