Supreme Court ruling secured legacies for Uhuru and Raila

Monday September 11 2017

Supreme court judges during the ruling of the presidential petition on September 1, 2017. The judges nullified President Kenyatta's re-election and by doing so, they secured legacies for both Mr Kenyatta and Mr Odinga. PHOTO | DENNIS ONSONGO | NATION MEDIA GROUP

Supreme court judges during the ruling of the presidential petition on September 1, 2017. The judges nullified President Kenyatta's re-election and by doing so, they secured legacies for both Mr Kenyatta and Mr Odinga. PHOTO | DENNIS ONSONGO | NATION MEDIA GROUP 

By KOIGI WA WAMWERE
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The decision by Supreme Court to annul the re-election of President Uhuru Kenyatta—not on account of his electoral transgressions but those of the electoral commission and its chairman—was a memorable and landmark judgment.

It will not only leave an indelible impact on the judicial history of Kenya and Africa but also advance democracy worldwide.

However, as with all great decisions—such as the advent of independence in Africa—this decision has split Kenya right down the middle. As one camp mourns the loss of ‘meat’ that it already had in the mouth, the other is celebrating another opportunity to win an election they believe they had won.

The entire world stands in full and rare acknowledgment of the daring act by the court to nullify a presidential election—moreover of an incumbent—which has put the Kenyan judiciary and democracy on a pedestal, at par with Western democracies.

SOLOMONIC DECISION

To prove its sincerity in supporting the historic verdict, the Executive must not only respect and abide by it but also stop challenging the independence of the Judiciary.

I am convinced that the decision was Solomonic.

Had the court declared him the winner of the August 8 General Election, though afflicted by irregularities and illegalities, the Opposition would have dismissed it as inevitable by a Chief Justice  appointed by the President and henpecked by the Executive.

Equally, had the court declared Nasa candidate Raila Odinga the winner and ordered that he be declared President-elect—as the decision was already branded a coup d'état could have sparked a conflagration from Jubilee Party supporters.

ELECTION NULLIFICATION

The only decision that President Kenyatta, Mr Odinga and Kenya can, therefore, live with without a sense of obvious injustice was nullification of the election and return of the contested ‘baby’ to its parents to decide whom to give it to in a fresh election that is free, fair, transparent and credible.

Anybody who claims to have won the election cannot reject an opportunity to prove his clear victory in a fresh election.

And to make the judgment acceptable to everyone and justice accessible to all candidates, as well as level the playing field of another election, the court attributed no guilt of any irregularity to any of the eight presidential candidates.

Another election will be awfully costly to the two candidates and the taxpayer.

GREAT RELIEF

But it is a great relief to all that Mr Odinga has accepted to take part in another election, when he believes he won the last one, while President Kenyatta has agreed to the repeat poll, when he says he won the last one fair and square and its nullification constituted rigging—as of President Yahya Jammeh of The Gambia.

But although the President has accepted the decision without agreeing with it, he has rhetorically asked how it could be that, out of the six elections, only his victory had a problem. Maybe judges will answer that they were only asked to consider problems with the presidential election.

I agree that if the law and the Constitution were violated in one election, they must have been in the others.

Only a repeat of all the six can cure the injustice of electoral irregularities and illegalities that have been exposed.

But the IEBC must be reformed quickly enough to make it ready for the repeat presidential poll and other elections in the future.

SECURED LEGACY

Just as the Supreme Court has made a name for itself, by accepting its judgment President Kenyatta has also secured his legacy in a continent where it is easier for the president to reject than accept electoral or judicial defeat.

And by insisting on getting electoral justice in court rather than in the streets and for giving a second verdict a chance, Mr Odinga has also secured his place in history.

As we plunge headlong into the campaigns, Kenyans must do everything they can to protect the legacy of Chief Justice David Maraga’s Supreme Court decision.

It will protect the independence of the Judiciary, rule of law and democracy.   

Mr Wamwere, a former MP, is an author. [email protected]