Apex court’s decision will have implications for its legitimacy

From left: Supreme Court judges Njoki Ndung'u, Smokin Wanjala, Deputy Chief Justice Philomena Mwilu and Chief Justice David Maraga having a word during proceedings of presidential petitions on November 16, 2017. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP

What you need to know:

  • It is difficult to predict which way any of the four justices will rule.
  • The delicate political situation complicates the court’s options.

In an already restive country, this will be another consequential week for Kenya as the Supreme Court delivers its judgment in the two petitions challenging the fresh presidential election held on October 26.

Former Kilome MP, John Harun Mwau, filed the first of the two petitions, while the second was filed by two civil society leaders, Njonjo Mue and Khelef Khalifa.

The question now is how the Supreme Court will decide on the petitions and how whatever decision it makes will affect the overall political situation in the country.

By a majority of four, with a dissent from Justices J.B. Ojwang and Njoki Ndung’u, the court annulled the results of the election held on August 8, in which the Independent Electoral and Boundaries Commission (IEBC) declared incumbent President Uhuru Kenyatta the winner, following a petition filed by his main challenger, Raila Odinga, and Odinga’s running mate, Kalonzo Musyoka.

PREDICTING

The key to predicting how the court might decide would seem to lie in an analysis of how the individual members of the court are likely to rule this time.

The dissenting opinion by Justice Ojwang, in the first petition, was based on the political question doctrine, the idea developed by US federal courts, that courts will refrain from making judgment over purely political disputes.

As this is a fundamental viewpoint from which he interprets the dispute in question, Justice Ojwang is likely to arrive at the same decision as during the first petition.

It is safe to assume that he will, therefore, dismiss the fresh petitions, like he did the first petition in August.

Although based on a different approach, Justice Njoki Ndung’u agreed with Justice Ojwang during the first petition.

The two have developed a history of deciding the same way whenever there is a split decision in the court.

For example, the two read dissenting opinions in the bitterly fought retirement case by their fellow justices, Kalpana Rawal and Philip Tunoi in June 2016.

It is not unlikely that Justice Ndung’u will, again, decide the same way as Justice Ojwang.

INDISPOSED

Justice Mohammed Ibrahim, said to be indisposed, only participated partially in hearing the last petition and was not available during judgment.

He has also not participated in the current case. Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu and Justices Smokin Wanjala and Isaac Lenaola constituted the majority whose opinion carried the day in the first petition.

If they rule together and the same way as last time, the petition will be allowed, and the election nullified. If all or any one of them rules differently from last time, the petition will be dismissed and the results of the election will be upheld.

It is difficult to predict which way any of the four justices will rule. A lot has happened since the decision of the court in the first petition.

The political leadership threatened the Supreme Court following its decision to nullify the first presidential election.

As part of this, an unruly mob made a menacing display outside the courthouse, forcing the Chief Justice, who had also been a target of the most vociferous attacks from citizens in parts of the country, to issue an unprecedented statement in defence of the Judiciary.
NO QUORUM
Thereafter, the Supreme Court failed to raise a quorum for the hearing of a petition that sought to prevent the IEBC from going ahead with the election of October 26, when only Chief Justice Maraga and Justice Lenaola turned up in court for the hearing.

Justice Mwilu did not attend the hearing because the previous evening, her security escort had been shot and injured, after dropping off the judge at home.

The judge was too traumatised to sit in court. The circumstances of the shooting have never been clarified, and the reason why the rest of the judges did not show up was not explained, leaving room for rumours.
While there is no doubt that the Supreme Court is operating under immense pressure, the court has handled itself with fortitude, allowing little evidence of the likely effects of this pressure.

With nowhere to hide now, the court is faced with a situation where it has to make another difficult decision, so soon after the first annulment. While some think that the court cannot annul two elections in a row, it would be left with no choice unless it can find that the conduct of the second election was better than the first.

The delicate political situation complicates the court’s options.

Disagreements about whether to allow supporters of the returning opposition leader, Raila Odinga, to meet him as he arrived at the airport from a foreign trip, generated street battles on Friday, leaving behind fatalities.
LEGITIMACY

The brinkmanship on all sides evidences the hardening of positions.

At the same time, the lack of a leadership with legitimacy in the eyes of all sides makes it difficult to tell how the unfolding crisis can be confronted.
While some would argue that a confirmation of the re-election of Kenyatta would go towards giving the country the missing leadership, those who dispute his re-election will see a confirmation of the results as an additional aggravating factor that draws them further away from a possible compromise with the Jubilee leadership.

The country has been here before. The Supreme Court has come to the same place where the Judiciary found itself in 2007, when Chief Justice Evan Gicheru had to decide whether or not to swear in President Mwai Kibaki for his second term, amid a raging dispute over his re-election.

While confirming the re-election of Kenyatta is not likely to lead to a conflagration of the kind that followed the swearing- in of Kibaki in 2007, the decision the court makes this week will have implications for its own legitimacy and, therefore, its ability to continue being seen as a credible player in the unfolding crisis.

If its decision leads to the court being seen as strong and independent, it will remain a useful player during these troubled times.

If the court comes through as weak and pliable, it would risk getting into a position of powerlessness, at a time when the services of an independent arbiter will be in great demand.