High Court ruling on the next election date was grossly wrong

No one expects the High Court to be infallible. But I don’t expect it to be dumb.

That’s why I am in complete shock. The new High Court has flunked its most crucial test.

The High Court scored an unmitigated “F” on its ruling on the date of the first election under the new Constitution.

Justices Isaac Lenaola, David Majanja and Mumbi Ngugi committed an unforced – and unfathomable – error in law.

That’s why I expect either the Court of Appeal or the Supreme Court to reverse them without delay.

How can the court utterly fail to grasp its central role as a force for national stability? The court’s interpretation of the Constitution must be better than Wanjiku’s.

The primary charge of the Judiciary is to resolve constitutional problems, not create them. The superior courts have the last word on the meaning of the Constitution.

That’s why it boggles the mind when the High Court punts the ball back to the political class.

Why should we have a High Court if it won’t do its job? It’s not the job of the High Court to give “scenarios”. Its job is “to decide” not “to speculate”.

What’s more, the High Court must understand the political context – and weight – of matters that come before it.

The date of the first election under the new law is a powder keg. Why would the court pour gasoline on it?

Let me get down to basics. It’s clear – to any lawyer – that the Committee of Experts bungled the date of the first election under the new Constitution.

It’s as simple as that – the CoE didn’t pay sufficient attention to this critical issue. I don’t know why, but I suspect there was too much “political noise” and fights over other provisions. I am not accusing the CoE of willful malignancy.

But I am accusing it of incompetence and shoddy draftsmanship. Which begs the question – what should the courts do when faced with vague, shoddily drafted, or conflicting constitutional provisions?

The answer is simple – the courts must “cure the error” in the spirit of the Constitution. No more, no less.

So why did the High Court fail to cure the error? The court gave two possible scenarios.

First, it ruled the election can only be held within 60 days in 2012 if the two principals – President Mwai Kibaki and Prime Minister Raila Odinga – “agree in writing” to dissolve the coalition.

Secondly, the court ruled that the election can be held within 60 days after the “expiry of the term” of the National Assembly on January 15, 2013.