Unfair tactics at play will affect how re-run is perceived

Justice Njoki Ndung’u’s dissenting opinion in the Supreme Court suggested legal reforms that would go towards managing the country’s elections. President Uhuru Kenyatta has accepted this suggestion in his considered reaction to the judgment by the Supreme Court.

While it remains to be seen what the intended amendments will seek to achieve, the instinct is to remain suspicious since such amendments are akin to changing the rules of a game that is still in play.

The last time that there were amendments affecting electoral laws was in late 2016, when both the National Assembly and the Senate enacted the Election Laws (Amendment) Act which captured some of the agreements reached by the joint parliamentary committee on elections.

The process of getting those changes was controversial, as Jubilee marshalled its majority in both Houses to force through changes to the text of the intended laws, ignoring the objections of the opposition.

After the recent election, Jubilee has only improved its parliamentary majority, and can more easily get whatever amendments it desires.

CONSTITUTIONAL AMENDMENTS

It is to be hoped, however, that Jubilee will not use its majority oppressively, like last time, and that a level of consultation with the opposition and the country will be instituted as part of whatever amendments are sought.

The country can promise that, in exchange to retaining an open mind about whatever changes are sought, Jubilee should be upfront in justifying those changes and seeking the concurrence of the country.

President Kenyatta has also taken a cue from Justice Ndung’u’s dissent to assert that, contrary to the findings of the majority of the court, none of the forms supporting the results of the elections were questionable and that the results announced by the IEBC were therefore valid.

This particular assertion is fraught with difficulties of methodology. The findings of the court, regarding the status of the forms, followed an agreed methodology, which involved the parties to the petition and the use of gadgets to test claims that a number of the forms in question were not genuine.

A report evidencing whatever investigation had been carried out was then presented to court, and was the basis of the findings about the forms.

INVESTIGATION

It remains unclear what methodology Justice Ndung’u used to arrive at a different set of findings regarding the forms. It is also unclear that she could do this on her own without inviting the parties to the petition, leave alone her fellow judges, to participate in whatever new line of investigation she had gone into.

In countries that follow an inquisitorial legal tradition, a judge can, on her own initiative, investigate an issue in question. Kenya’s legal tradition, based on the common law, is adversarial in nature, and requires that the judge does not descend into the arena of the conflict.

Further, the adversarial nature of proceedings also requires the involvement of all the parties during all the stages of inquiry. It would be difficult for Justice Ndung’u to demonstrate that whatever method she followed comports with these traditions. Also, her conduct exposes her to accusations that she has, quite literally, descended into the arena of the conflict.

UNDER ATTACK

Part of the context as the country heads towards the fresh presidential election is the escalation of a smear campaign targeting judges, members of the IEBC and members of Kenyan civil society. Chief Justice David Maraga has been a central target of all this. Last week, crowds came out in Jubilee-dominated areas to demand that the Chief Justice should resign. It is clear that they were well coordinated, which is the only way in which they could come out at the same time in different parts of the country.

A second strand of attacks is an online campaign that seeks to disparage the judges that were involved in the majority judgment but also Ms Roselyn Akombe of the IEBC. Ms Akombe has since come out to express fear for her safety, a claim that the establishment seems to have ignored.

As part of the online campaign, the privacy of the judges is being exposed and their achievements questioned or disparaged.

CIVIL SOCIETY

There are also mythical claims, depicting the existence of an alliance of civil society actors and their funders. It is alleged that the alliance has captured the Judiciary and led to the recent decision in which the Supreme Court overturned the presidential petition. Unfortunately, all these claims are utterly false and highly defamatory of the individuals that they depict.

The last line of attacks has been the petitions seeking the removal of individuals from the Judiciary. One was presented against Chief Justice Maraga, which also made sweeping allegations against other people, and a second one has been brought against Deputy Chief Justice Philomena Mwilu and Justice Isaac Lenaola.

Unfortunately, mainstream media has been uncritical of these tactics which it has also helped to fuel. For example, there was a quite unnecessary story about the personal life of Justice Mwilu in one of the newspapers, which had also carried a sensational coverage of the petition against Justices Mwilu and Lenaola.

INTERNATIONAL CRIMINAL COURT

There is a method to all this. Jubilee is employing the same tactics it used against the International Criminal Court in the cases against President Kenyatta and Deputy President William Ruto. Anybody who stands up to Jubilee risks the exposure of privacy, like Justices Mwilu or Lenaola, or is threatened, like all the four judges who found for the petitioners and also the lonely Ms Akombe at the IEBC.

Because all these things are being done to give an electoral advantage to President Kenyatta, he is in a strong position to bring an end to these mean tactics if he desires. His silence must mean that he condones, and even encourages, the tactics.

A free and fair election is not just what happens on voting day. The overall context also matters, and ours has deteriorated badly. The unfair tactics at play will greatly affect how the repeat is perceived. Even if he wins the fresh election, Kenyatta will not achieve the legitimacy he craves because he has either led the line of unfair tactics, or allowed them to go on around him without a bother.

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