Ruling likely to be influenced by public interest this time

There are at least five cases filed in the Supreme Court relating to the fresh presidential election which was triggered by the court’s nullification of Uhuru Kenyatta’s election in August.

Since Raila Odinga withdrew from the fresh election and the political minnows who ran against Mr Kenyatta have not challenged his election, the hearing will be without the high stakes and drama that attended Mr Odinga’s petition hearing last August.

This is by no means saying the pending cases raise profound legal matters that could result in another landmark judgment that could, for better or worse, reshape Kenya’s politics and redefine its electoral jurisprudence.

ELECTORAL OFFENCES

Two of the three presidential petitions challenge Mr Kenyatta’s election whilst the third one concerns alleged electoral offences committed by Mr Odinga and his main political lieutenants.

The petition filed by businessman John Harun Mwau concerns the validity of the fresh election held without conducting nominations.

The case filed by human rights activists Njonjo Mue and Khelef Khalifa revolves around the effect of Mr Odinga’s withdrawal from and apparent incompleteness of the elections in all 290 constituencies.

In this regard, it bears noting that the spectre of an incomplete presidential election precipitated the filing of a case in the High Court by Pokot South MP David Pkosing which is now pending before the Supreme Court after the High Court ruled it had no jurisdiction to determine the issues raised.

A typical presidential contest in fragile democracies like Kenya creates a climate for legal and political contestation. Invariably, the fresh election ordered by the Supreme Court had its fair share of legal and political contestations.

PROTAGONISTS

But one of the main protagonists, Nasa, has chosen to seek redress for its grievances in the realm of politics rather than the courts.

Accordingly, the matters before the Supreme Court will only resolve the weighty legal issues against the backdrop of unfolding political complications that have affected parliamentary business and even ignited debate on secession and formation of extra-legal people’s assemblies.

As the Supreme Court prepares to determine the cases arising from the fresh election it ordered, it will help to bear in mind three things.

First, the current political impasse and legal uncertainty are partly traceable to its decision in Mr Odinga’s two petitions both in March 2013 and September 2017 in two respects.

We owe it to the 2013 judgment the controversial notion that a fresh election does not require nomination and that the withdrawal of a candidate should trigger cancellation of such an election.

This is the jurisprudence that Nasa relied on to withdraw the candidature of Mr Odinga a fortnight to the October 26 date.

As regards the 2017 judgment, the Supreme Court majority should by now have woken up to the sobering reality that whatever the legal merits of their decision, they terribly misread Kenya’s political reality in ordering a repeat election that Nasa had no appetite to contest.
LEGITIMACY

The second thing that the judges will have to bear in mind is that whereas Kenya’s Constitution prescribes presidential elections as the basis for establishment of government, about half the country is beginning to question legitimacy of elections as the exclusive basis for establishment of lawful government.

This is a profound issue that should concern the judges and worry the entire national political class.

To his credit Mr Pkosing’s case seeks to address this profound issue.

The third issue the judges should bear in mind concerns its own legitimacy, competence and credibility to resolve complex legal and political disputes as the court of last resort.

As the Nasa leadership and proponents of secession roll out their political schemes in the coming months alongside political realignments in the Kenyatta II succession, many complex legal and political disputes are bound to find their way to the Supreme Court.

To resolve the current and foreseeable legal and political disputes touching the very core of Kenya’s statehood, the judges of the apex court will have to demonstrate greater wisdom and competence.

In the meantime, the cases before the Supreme Court put the judges in a complex dilemma.

But when all is said and done, however, I must admit that no analyst is prophetic enough to predict decisions of a court led by Chief Justice David Maraga.

The writer is a constitutional lawyer ([email protected]).