Decision 2017 has given new lease of life to Supreme Court

The enormity of the decision of the Supreme Court to annul the results of the 2017 presidential elections is partly conveyed by comparing it with the 2013 election petition.

Massive public expectation accompanied the decision to challenge the results of the 2013 presidential election before the Supreme Court.

The country had just adopted a new Constitution that stipulated a more exacting standard for conducting General Election.

For the first time, this standard was going to be tested in the 2013 petition. Secondly, the newly-constituted Supreme Court, one of the innovations of the new Constitution, was a source of hope that whatever judgment that the court made would be worth the public investment that the unique jurisdiction of this court was intended to achieve.

It also helped that the new court was headed by Chief Justice Willy Mutunga, a man who had come to the Judiciary with a history of political activism and a solid reputation for personal independence.

The much-criticised decision of the court in the 2013 election petition was much more disappointing because it defied all the public expectations that preceded it.

PUBLIC EXPECTATION

By contrast, there was little public expectation ahead of the astonishing decision of the court to annul the results of the 2017 presidential election.

Although respected in his own way, and expected to deliver justice, there was no public pressure on Chief Justice David Maraga that would be equated to the burden that weighed on his predecessor.

Secondly, having occasioned so much disappointment in 2013, the court had greatly lowered the bar and, with that, any hope that it could suddenly find the courage to give a different kind of judgment.

As part of the lowered expectations, while in 2013, Raila Odinga had readily made the decision to challenge the results of the election in the Supreme Court, he went on to maintain that he would not be going back to the Supreme Court if he lost the subsequent elections in 2017.

When, against this promise, Mr Odinga decided to go back to the Supreme Court, the decision seemed ill-considered and hopeless, one that was bound to fail.

UHURU KENYATTA

The political landscape in 2017 is also very different from what obtained in 2013. In 2013, Mr Uhuru Kenyatta and Mr William Ruto, declared the winners, were both coming into presidential office for the first time while Mr Odinga as Prime Minister enjoyed better political leverage than he has in 2017.

Mr Kenyatta and Mr Ruto also faced the stigma of the cases before the International Criminal Court (ICC), and although the Judiciary had cleared them to run in the election, there was concern over how the cases would impact their ability to govern.

In those circumstances, their candidature was something of a pariah. By contrast, the fact that these two were already in office ahead of the 2017 election, having also overcome the cases before the ICC, created a situation of incumbency and it was thought that this alone would make it more difficult for any court to make an adverse decision against the two.

Inside the courtroom, the conduct of the 2017 petition was also different from what happened in 2013.

In 2013, the court failed to control its own proceedings, a role that it ceded to the lawyers for the respondents.

PERVADED HEARINGS

A testy atmosphere pervaded the hearings, and the court seemed helpless to protect the lawyers for the petitioners or their clients, who were often on the receiving end of much of the invective.

The court showed its own bias against the petitioners, none of whose interlocutory applications was allowed, while those supported by the respondents were invariably successful. 

By contrast, from early on, the judges asserted control over their own proceedings in the 2017 petition.

When, for example, Attorney General Githu Muigai tried to suggest to the court how it might plan its diary, in effect an attempt to co-decide with the court, he received a sharp answer from Deputy Chief Justice Philomena Mwilu, to the effect that the court alone would decide on such matters. Unlike in 2017 when the court gave short shrift to the interlocutory applications by the petitioners, the Maraga court showed much patience to those applications, not only making the fateful order requiring the IEBC to open its information technology infrastructure for scrutiny, an application the court had denied in 2013, but also asserting its powers to undercut the obstructionist behaviour to which the IEBC then resorted, as a way of undermining the scrutiny.

DIGNITY

Also, the personal role of the patient and affable Justice Maraga brought much dignity in the proceedings, and left everyone feeling well treated by the court.

There were also important differences of approaches to the substance of the petition between 2013 and 2017.

Mr Odinga’s 2013 petition was based on an attempt to demonstrate that the wafer thin majority of votes, by which Mr Kenyatta was adjudged to have avoided a run-off, was not accurately tabulated and that a more accurate tabulation would have reduced this majority to a number where a run-off would be impossible to avoid.

By contrast, his case in the 2017 petition, which he co-presented with his running mate Kalonzo Musyoka, was based on process.

Mr Odinga and Mr Musyoka sought to demonstrate that the process leading to the results had not complied with the applicable procedural law governing elections.

While, in the absence of a detailed judgment, it is not possible to conclusively understand the approach that the court employed in reaching the remarkable decision to invalidate the election, there was enough to indicate what might be contained in the final judgment when this is eventually provided.

DISSENTING JUDGES

Speaking for the majority, who, unlike the two dissenting judges, had not offered any preliminary reasons for their decision, Chief Justice Maraga indicated that elections are a process rather than an event. In their reasoned judgment, it is likely that the majority will argue that lapses in the procedures used to conduct the election were so grave as to justify the court’s historic decision.

On their part, the minority – Justices JB Ojwang and Njoki Ndung’u – gave a longer indication of why they would have dismissed the petition.

According to Justice Ojwang, the evidence brought before the court indicated that the election had been held in accordance with the applicable electoral law, and that the participation of local and international observers, as well as party agents, had been allowed in the election, making him doubt the evidence that the petitioners had brought to court, which sought to create doubts as to the fairness of the electoral process.

OBSERVERS

Lady-Justice Ndung’u took much the same line, emphasising that many regional and international observers had largely hailed the election as free, fair, credible and peaceful and that the decision of the voter at the primary locale of the election, that is the polling station, remained unchallenged. For these reasons, the two said they would have dismissed the petition.

It seems, then, that the court has divided along the two approaches between the petitioners, on the one hand, and the respondents, on the other, in which the former emphasised matters of procedure while the latter relied on the final results to bolster their respective positions. As both the dissenting judges have made election observation a central factor in their decision, the majority judgment might have to deal with this issue in the detailed judgment.

After the 2013 election, the Supreme Court seemed truly dead and buried as a constitutional organ. With such a radical judgment in 2017, the court has shown that it is alive and well.

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