Division keeps Kenyans glued to their screens again

The Constitutional and Human Rights Division of the High Court yet again rose to the occasion, giving a much-needed legal interpretation to an issue of immense national importance.

In declining to announce the date of forthcoming elections and declaring, instead, that it was the role of the Independent Electoral and Boundaries Commission to do so, the court may have denied the country the climax it deserved.

However the court laid down the law and in doing so reaffirmed its unfettered constitutional mandate of giving legal guidance to its two sister arms of government – the Executive and Parliament.

But Friday’s verdict by Judges Isaac Lenaola, Mumbi Ngugi and David Majanja was by no means the first such instance in recent history when the entire nation looked up to the Judiciary for such crucial direction.

On a bright Tuesday morning in November 15, 2005, the whole country stood on edge as three judges of the then Constitutional and Judicial Review of the High Court sat to deliver a judgment on whether or not the country should hold a referendum which had been planned for the following Monday.

The case for the postponement of the referendum had been instituted by a group of civil society activists who had argued that the constitution review process had been flawed and the document manipulated to serve certain vested interests.

The court ruling had been preceded by a charged campaign period featuring the Orange group which was then opposed to the referendum, against the pro-referendum Banana lot. And with only a few days left to the ballot, every side awaited the court’s decision with bated breath.

Nairobi residents who were not working that day trooped to the venue of the ruling – the Nairobi Law Courts and High Court room 1 in particular. Others had their attention riveted to television stations and radios.

Even political bigwigs leading both the Banana Yes-vote and Orange No-vote camps were not left behind.

Banana big shots included Justice minister Kiraitu Murungi and a team of other MPs allied to President Kibaki.

The  Orange leaders included Messrs Raila Odinga, Uhuru Kenyatta, Najib Balala, Mutula Kilonzo, William Ruto and Julia Ojiambo. 

It was an event to behold. At the centre of all the attention were judges Joseph Nyamu, Mathew Anyara Emukule and Roselyne Wendoh of the Constitutional and Judicial Review Division.

Given the vast national interest it generated, then Chief Justice Evan Gicheru waived the ban on live coverage of judicial proceedings and allowed television and radio stations to beam the ruling live to millions of homes.

The three judges took turns to read the 176-page verdict as the public clung to each and every word.

The judges gave the up coming referendum a clean bill of health and unanimously threw out an application questioning the validity of the referendum and seeking to have it declared unconstitutional.

“We find and declare that the process is not flawed. In our view, the real judges of the process are the people of Kenya in view of their past involvement with the process,” the judges proclaimed. 

Stopping the poll would amount to challenging the people’s right to make a Constitution, the judges said.
The Banana group celebrated the court ruling but that amounted to premature laughter.

Because in the referendum, the Orange team handed President Kibaki’s Banana team a beating by rallying Kenyans to reject the Draft Constitution.