MUTUA: High Court ruling was grossly wrong - Daily Nation

High Court ruling on the next election date was grossly wrong

Saturday January 14 2012



No one expects the High Court to be infallible. But I don’t expect it to be dumb.

That’s why I am in complete shock. The new High Court has flunked its most crucial test.

The High Court scored an unmitigated “F” on its ruling on the date of the first election under the new Constitution.

Justices Isaac Lenaola, David Majanja and Mumbi Ngugi committed an unforced – and unfathomable – error in law.

That’s why I expect either the Court of Appeal or the Supreme Court to reverse them without delay.

How can the court utterly fail to grasp its central role as a force for national stability? The court’s interpretation of the Constitution must be better than Wanjiku’s.

The primary charge of the Judiciary is to resolve constitutional problems, not create them. The superior courts have the last word on the meaning of the Constitution.

That’s why it boggles the mind when the High Court punts the ball back to the political class.

Why should we have a High Court if it won’t do its job? It’s not the job of the High Court to give “scenarios”. Its job is “to decide” not “to speculate”.

What’s more, the High Court must understand the political context – and weight – of matters that come before it.

The date of the first election under the new law is a powder keg. Why would the court pour gasoline on it?

Let me get down to basics. It’s clear – to any lawyer – that the Committee of Experts bungled the date of the first election under the new Constitution.

It’s as simple as that – the CoE didn’t pay sufficient attention to this critical issue. I don’t know why, but I suspect there was too much “political noise” and fights over other provisions. I am not accusing the CoE of willful malignancy.

But I am accusing it of incompetence and shoddy draftsmanship. Which begs the question – what should the courts do when faced with vague, shoddily drafted, or conflicting constitutional provisions?

The answer is simple – the courts must “cure the error” in the spirit of the Constitution. No more, no less.

So why did the High Court fail to cure the error? The court gave two possible scenarios.

First, it ruled the election can only be held within 60 days in 2012 if the two principals – President Mwai Kibaki and Prime Minister Raila Odinga – “agree in writing” to dissolve the coalition.

Secondly, the court ruled that the election can be held within 60 days after the “expiry of the term” of the National Assembly on January 15, 2013.

This means the latest the election can be held is March 15, 2013. The argument is that Parliament’s term commenced on January 15, 2008, and would expire on January 15, 2013. This is legal baloney and hogwash.

Why was the court reluctant to say CoE made a mistake in draftsmanship? The rules of legal interpretation allow courts to “cure” errors of draftsmen in matters critical to the nation.

This is true especially where such errors are a result of inattention, negligence, omission, or typing. We know the Constitution was drafted amidst great opposition and ear-busting din.

That’s why CoE’s “errors” are understandable. I didn’t expect such a panel of judges to resort to empty legalese, judicial somersaults, and half-baked arguments to evade saying the obvious.

The era of a timid Judiciary that kowtows to the political class should be over.

My reading of the law is that the Sixth Schedule meant to bridge the old and the new constitutional orders to allow a seamless transition.

This, in my view, is what the CoE intended, although it bungled the language.

Thus Section 12 of the Sixth Schedule, which temporarily constitutionalises the National Accord and the offices of the principals, gives the President “implicit power” to dissolve Parliament one last time so that elections can be held in December

But the Constitution cannot be read, as the High Court purports, to permit the first election under it in 2013. That’s a clear and impermissible legal absurdity not contemplated by the CoE.

Let me be clear. The “unexpired term” of the Tenth Parliament terminates on December 27, 2012 when it was elected five years ago.

The Constitution didn’t contemplate it sitting until January 15, 2013 as the High Court erroneously opines.

But I agree with the court’s interpretation that elections can be held “anytime” in 2012 if the coalition is dissolved by the two principals.

But much of the court’s opinion is meaningless legal mumbo-jumbo which would cause serious constitutional problems.

If elections are held in March 2013, as the court says, who would be President because Mr Kibaki’s term of office ends on December 29, 2012, the date he was sworn in?

Would Kenya go for two months without a President? The new Judiciary must understand its sombre responsibility.

It’s the key midwife for the new constitutional dispensation. It cannot act like deer caught in the headlights when confronted with momentous decisions.

Nor can it kick the can down the road. It should act as the guarantor of the national spirit, stability, and legality.

My humble opinion is that the High Court failed this high and noble test. It acted like a cowardly Kanu-era court.

That’s why the Supreme Court should clean up this mess and declare either an August or December 2012 election date.

Makau Mutua is Dean and SUNY Distinguished Professor at the State University of New York at Buffalo Law School and Chair of the KHRC.