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Nasa decision to go to court is laudable

Wednesday August 16 2017

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The National Super Alliance (Nasa), which has categorically rejected the outcome of last week’s presidential election, has made a sober decision to fight its case in court.

This is a major and strategic climb-down from its erstwhile hard stance, where the Nasa principals and their associates had ruled out seeking legal redress.

In civilised societies, disputes are normally resolved in courts and not in the streets. And this is in the context where the courts are independent and credible.

The reason citizens resort to street protests is when they lose faith in courts and other institutions of governance.

Kenya has working institutions and the citizens believe in the rule of law. The 2010 Constitution raised the governance bar and entrenched democratic practices.

It created and strengthened institutions and vested powers in them.


The Supreme Court is one of those institutions created by the Constitution with the express objective of determining presidential election disputes.


The reason why Nasa was sceptical about seeking judicial recourse in court was because of the 2013 experience where the Supreme Court threw out a petition, then filed by the Coalition for Reforms and Democracy (Cord) against the Jubilee coalition, largely, on a technicality.

As the court of last resort, it was deemed that the Supreme Court would put premium on substance rather than form and substance.

But was not to be. At the end of it, the court lost face and squandered public trust.

For now, Nasa has at least shown confidence in the Judiciary; which is as it should be. As a coalition seeking to form the government, it must demonstrate in word and deed that it believes in established institutions and is ready to subject itself to them.

When leaders shun courts and other institutions, cast aspersions on them, they systematically decimate them and open doors for disorder. In turn, they also lose the legitimacy to govern.


Significantly, the coalition has spared the country the pain and agony of street protests.

For the past two days, the country has been holding its breath unsure which path the coalition would take.

The fear was that the coalition would spurn the court, which would mean street protests and the attendant violence.

Yet the country is already bleeding following brutal attack of protesters, who took to the street to challenge the declaration of President Uhuru Kenyatta’s victory last Friday.

Now, the focus shifts to the Supreme Court, which has a chance to redeem its image.

Chief Justice David Maraga has all along declared that the Judiciary is ready for petitions and will handle them with dexterity and speed.


The only way the Judiciary, and, in particular, the Supreme Court, will regain public confidence is through meticulous adjudication of the petition.

It must assert its independence, demonstrate professional excellence through the interrogation of facts rather than expunging records on technicalities; and ultimately, make a ruling based on fair assessment of evidence adduced before it.

Conversely, all the parties must be ready to accept the outcome of the petition.

They must let the court act independently and execute its mandate without external influence.

Prior to the elections, Chief Justice Maraga was compelled to read the riot act to the politicians – both President Kenyatta and Raila Odinga and their loyalists – for incessant attacks on the Judiciary.

CJ Maraga and his team must stand firm and keep off meddlesome politicians and brokers keen to influence the Judiciary.

Kenyans should maintain calm and let the court discharge its constitutional mandate.