A commendable job by Supreme Court but…

The High Court, the Court of Appeal and the Supreme Court have finalised the last election petitions pending in the courts.

In a record 12 months, the three courts heard and determined all election petitions and the appeals up to the Supreme Court.

Previously, an election petition just in the High Court used to take more than five years. This is both a judicial and a national milestone.

The Judiciary leadership headed by Chief Justice Willy Mutunga and the judges of these courts must be commended for a job well done. They have rendered an exemplary service to the people of Kenya.

We have, in the process, pleasantly witnessed from close quarters the sweet fruits of a reformed Judiciary and a constitution that requires cases to be determined within a set timeframe.

The three courts have fared differently in how they handled election petitions. Lawyers, legal scholars and the general public have formed their respective opinions on how well or poorly a given court has fared.

Even some commentators have alluded to what they have called the “supremacy” wars between the Court of Appeal and the Supreme Court. Some commentators have loudly wondered how the Court of Appeal could not get a single case right!

The truth of the matter is that the High Court and the Supreme Court did very well. The general feeling is that the Court of Appeal performed dismally. The High Court was the trial court.

It heard cases throughout the country and finalised all of them within the mandatory six months. In more than 50 per cent of the cases heard in the High Court, the losing party preferred no appeal.

In the majority of cases, the High Court judges did very well. They conducted the trials transparently and delivered sound judgments in law, thus the low percentage in appeals.

STRONG REBUKE

The Court of Appeal’s performance was a mixed bag. Certain courts fared much better than others. But it is pertinent to note that every appeal from the Court of Appeal to the Supreme Court was upheld. Such a high degree of reversal on appeal is unusual and the same is rightly seen as a strong rebuke by the Supreme Court.

Some commentators think that the Court of Appeal took many liberties and failed to appreciate that it is no longer the apex court.

The Supreme Court performed very well in election petitions. Because election petitions are grounded mostly in the constitution, parties appealed to the court as a matter of right. About two dozen cases were heard and determined by the court.

The court did very well and settled the law in two areas of election petition. First, it firmly affirmed that election petitions must be filed within 30 days of the result. This rule is now clear to all.

Second, it cleared a lot of debris and mud on the grounds upon which the trial court can overturn an election petition especially when the margin between the winning candidate and the runners-up is very close.

The court established firmly the rule that the alleged irregularity must affect and change the result.

IMPROVEMENTS

There are a number of areas the Supreme Court must improve upon.

First, it should stop assuming jurisdiction in certain matters with the same glee a 14-year-old child soldier wields his first AK-47 rifle. That judicial exuberance will come to haunt the court.

Second, the court needs to improve on the security and sanctity of its drafts and final judgments. Litigants get a whiff of the same quite easily and that can compromise irreparably the integrity of its process.

Third, it must learn from history what caused the downfall of the Court of Appeal. Fourth, the Supreme Court, like the old Court of Appeal, has started talking down to litigants.

The court proudly talks about its judicial authority in an almost militaristic tone.

Lastly, judges should not call their dissenting judgment a concurring judgment. Justice Njoki Ndung’u wrote two brilliant dissents but termed them concurring judgments when both were a withering rebuke of the decision of the majority.

Senior Counsel Ahmednasir Abdullahi is the publisher, Nairobi Law Monthly [email protected]