Outcome of Raila’s petition against Uhuru’s election at the heart of new row, say lawyers

Lawyers have warned that an ideological war between the Court of Appeal and the Supreme Court may lead to public distrust of the justice system.

The Supreme Court has so far fundamentally disagreed with the Appeal Court in seven different election cases. While some lawyers see the move as an attempt by the Supreme Court to reinforce its jurisprudence stemming from the Raila Odinga election petition against President Uhuru Kenyatta, others think the institution has fallen victim to what critics say is the “low threshold” it set in the handling of election cases in the Odinga petition.

Another emerging narrative is that the Supreme Court may have been reluctant to nullify elections in the seven cases brought before it for fear of vindicating the Cord argument that the March 2013 election was not free and fair, having declared that the polls were credible. However, the main focus now seems to be the impact of the decisions on the standing of the Appeal Court whose decisions it has dismissed with apparent glee.

Law Society of Kenya chairman Eric Mutua says there is a possibility of Kenyans rebelling against the Court of Appeal because of its “poor score in handling election cases”. “As lawyers we cannot do much because the court has a final say. But the public might find a reason to demand its disbandment,” Mr Mutua cautioned.

The latest Supreme Court decision came on Thursday, in which Okoth Obado was confirmed as the Migori governor together with a declaration that the Court of Appeal wandered beyond its jurisdiction when it weighed the evidence tendered at the High Court.

The day before, Mr Silverse Anami left the Supreme Court a happy man as Shinyalu MP after a decision that his case was a non-starter because it had been filed out of time.
The highest court has similarly differed with appellate judges in cases touching on Mombasa governor Hassan Joho, Othaya MP Mary Wambui, Meru governor Peter Munya, Nyando MP Fred Outa and Garissa governor Nathif Jama.
On February 4, a five-judge bench ruled that a case against Mr Joho should not have been entertained because it was filed out of time.
On May 5, the judges of the highest court threw out a case against Ms Wambui for similar reasons. They reversed an Appeal Court judgment that nullified Ms Wambui’s election due to breaches of the electoral law.
Mr George Kegoro, the executive director of the International Commission of Jurists - Kenya Chapter, took issue with the court’s decision on Ms Wambui’s case in his opinion in the Saturday Nation on May 10, 2014, saying it was making the Supreme Court look as unpredictable and in love with technicalities as the Moi-era Court of Appeal.

Governor Munya would be the next beneficiary of the Supreme Court judgment. On May 30, 2014, his election was confirmed with the reversal of a Nyeri court’s decision that ordered a by-election because of the election not being verifiable.

On July 3, the Bench led by Chief Justice Willy Mutunga said Mr Outa will continue serving as Nyando MP, dismissing a Court of Appeal finding that there was concrete evidence to prove that he used Constituency Development Fund cheque disbursements to bribe voters. A similar jab was thrown at the Court of Appeal on July 9 when Governor Jama was confirmed in his position with a ruling that the Appellate Court overstepped its jurisdiction.

An analysis of the decisions of the Supreme Court reveals that it insists on courts abiding by the position it took in the presidential petition.

A good example is in the decision reinstating Mr Obado as governor, where the judges said: “The appellate court misdirected itself in failing to follow the binding precedent set by this court in the Raila Odinga case, which enjoins that a court is to consider the effect of the alleged irregularities on the election result, before nullifying an election.”

Abide by

The Supreme Court equally requires courts to abide by its early decision on when a party is said to be in a position to prove wrong the allegations by another, known in legal terms as the shifting of the burden of proof.

In reinstating Mr Outa, for instance, the court said: “In our decision in the Raila Odinga case, regarding the burden of proof in election petitions, we said that ‘... the threshold of proof should, in principle, be above the balance of probability, though not as high as beyond reasonable doubt."

Critics of the Supreme Court are uneasy with its insistence on using its findings in Mr Odinga’s case as the yardstick to decide other cases.

“The Supreme Court is increasingly relying on the Raila Odinga case to dismiss or adjudicate on a number of other cases. It is causing a lot of confusion,” said Prof Ben Shihanya, a law lecturer.

Mr Mutua said: “In our view, the decision made in the presidential petition was wrong. The Supreme Court improperly set high standards in terms of what forms malpractices that can lead to an election being nullified.”

Mr Shihanya agreed with the LSK boss, saying the trend risks causing a crisis of confidence in the justice system. The decision on the Raila case was faulted by legal practitioners who argued that it will set a bad precedent. Constitutional lawyer Wachira Maina said the court wrongly relied on a “backward-looking, mean-spirited and cramped Nigerian precedent”. “The Supreme Court has only given us reasons that sound good; not good, sound reasons,” he said.

Lawyers argued that the verdict may have raised the threshold for one to overturn a poll result but lowered the standards for managing and conducting an election.

Another bone of contention is a provision that the Court of Appeal should only handle matters of law as opposed to matters of fact. The Supreme Court, in cases where it declared that the lower court went beyond its jurisdiction, reprimanded appellate judges, saying that they misinterpreted matters of law.

The judgments equally exposed the inherent quarrel between the two courts as regards upholding the Constitution and learning from history.

In Mr Obado’s case, for example, the three-judge appellate Bench that handled the matter noted that the errors posted by the electoral commission were proof that it had not learnt from the 2007 post-election violence.

“The kind of irregularities and mistakes committed ...  are the same mistakes noted by the Kriegler Report on the bungled 2007 presidential election that were re-enacted by a different cast, begging the question whether there were any lessons learnt from the outcome of the 2007 General Election,” said Justices Onyango Otieno, William Ouko and Sankale ole Kantai.

The Supreme Court responded that the Court of Appeal should not have focused on the irregularities.

In the Shinyalu case appellate judges were perturbed by the fact that violence the night before the election led to the burning of a vehicle belonging to aspirant Justus Kizito.

“Other than causing some voters to stay away or abstain from voting, the other consequence is that the rumour of [Mr Kizito] having died caused a number of those who voted cast their votes to persons rather than him,” said Justices Onyango Otieno, Patrick Kiage and Agnes Murgor, adding that such an election did not meet the constitutional standard of being free and fair.

The LSK boss explained that the Supreme Court is eager to justify its early decisions, which can put litigants at risk. He said: “We don’t understand how the 26 judges of the Appeal Court can be wrong and the seven of the Supreme Court say they are right all the time.”

The highest court, he said, was fast following the “draconian” footsteps of the old Court of Appeal. However, the situation may be remedied when different judges replace those currently at the helm of the Supreme Court.