Supreme Court debate won’t just go away

It is becoming clear that a major public dialogue is necessary to settle emerging questions about the future management of electoral disputes in Kenya and the role of the Supreme Court in such disputes.

The jurisdiction of the Supreme Court to resolve disputes arising from presidential elections is a major innovation of the new Constitution.

However, the first judgment of the Supreme Court when exercising this unique jurisdiction was controversial and continues to divide public opinion, just like the election results themselves. It is now clear that the assumptions which led to the conferment of this jurisdiction on the court have simply not been met.

Questions about perceived shortcomings in the judgment were revisited during a regional conference of East African lawyers in Mombasa last week. Before that, Justice Mohammed Ibrahim, a member of the court, was reported to have said that elections should be decided at the ballot and not in court, a statement that was interpreted to mean that the Supreme Court is possibly uncomfortable with the role of managing presidential electoral disputes and may prefer changes that would remove this role from the court.

Although Justice Ibrahim somewhat denied having said this when he addressed the Mombasa meeting, saying he had been misquoted, these remarks, coupled with the unsatisfactory manner in which the court deployed its new role, have shaped a debate as to whether the court is the best forum for deciding disputes arising from presidential results.

In the Mombasa meeting, there was strong criticism of the Supreme Court judgment and, while some of the issues raised were not new, it is the responses by Justice Ibrahim that were interesting, including three concessions that he made.

In response to questions about the perceived poor quality of the judgment, which included formal errors that the court was then forced to correct, he said that with more time than the 14 days that the Constitution allows for the hearing of petitions, the court might have come to a different decision. Second, he agreed that it would have been better if each judge had written a separate judgment.

Instead the court wrote a collective judgment, in which there was an improbable unanimity on all issues. Third, he conceded that the court, which had conducted a highly publicised open hearing, should have read its judgment in the open, and the failure to do so was probably illegal.

Two questions raised by these responses are, first, what a “different decision” might have looked like and second whether, going forward, the country is prepared to consider the argument for more time for addressing presidential petitions.

The Mombasa meeting noted that in the Supreme Court, the respondents won their counter-petition, the one about “all votes cast”. In giving them this victory, the court decided that the phrase “all votes cast” which is used in the current Constitution, means the same thing as “valid votes cast,” the phrase that the former constitution had employed, in establishing a formula for counting presidential votes. On the basis of plain English alone, it is not easy to agree with this finding, which the court justified on a judicial authority from the Seychelles.

Moreover, an independent examination of the Seychellois authority indicates that it was misapplied and does not support the conclusion it was used to arrive at. Unless overturned by another, the effect of the judgment, however, binds all future elections, whose results will be required to discard spoilt votes when determining presidential results.

The challenge is that spoilt votes acquire a premium they would not have had if they were included in determining the results. This is especially so in close elections, such as Kenya seems destined to always have. However, Kenya’s electoral process remains riddled with errors when counting votes. For example, in the elections of 2013, initial results showed a large number of spoilt votes.

Later, the IEBC explained that a software error was responsible for multiplying the spoilt votes by a factor of 8 and drastically adjusted the number downwards. Excluding spoilt votes imposes a burden of accuracy and probity in electoral management, which the IEBC cannot easily discharge.

Besides an unlikely victory in their counter-petition, all the interim applications before the Supreme Court were decided for the respondents. Taken together, the circumstances left the impression that the respondents would get from the court, just whatever results they wanted.

Officially, the Supreme Court says it welcomes robust criticism of the judgment, and there has been some. However, the court has uncharacteristically been promoting this judgment, copies of which the court has been distributing. The question is: Why the special treatment for this judgment which others from the same court do not receive?

In the scheme of things, the concessions by Justice Ibrahim were minor and will change little. However, they create a small fissure that can lead to the redemption that the Supreme Court needs, after disappointing so many people. Before last week, the Chief Justice had gone about defending the judgment, which was viewed as an act of insularity, of the kind he warned against when he assumed office. The Chief Justice should establish a stakeholder dialogue regarding its future role in electoral justice. Such a dialogue can answer some of these questions.

Mr Kegoro is an Advocate of the High Court