After watching the Supreme Court proceeding on the presidential election petition, a friend quickly remarked that the judges seemed more prepared than most of the lawyers including the lead counsel.
He had arrived at this conclusion after witnessing only two things. First was the failure of some of the lawyers to explain what happens inside a polling station.
He laughed after noticing that the lead counsel and some of those assisting them did not understand the balloting process.
Some failed to differentiate between rejected, spoilt and stray ballots. The Supreme Court judges, on the other hand, appeared quite conversant with these concepts.
Secondly, this friend observed that the lawyers in court did not seem to understand what constitutes the electoral process. Some were more concerned about the tallying of votes.
This is an activity at the tail end of the electoral process. It is done after people have cast their ballots. Before the actual voting, many other activities take place.
All these activities are considered before making determination on the credibility and fairness of an election.
The Supreme Court judges appeared to be familiar with the electoral process. They asked questions with a sense of clarity about the process while some of the lawyers failed to clarify simple matters.
They were focused on numbers and the tallying in general. They concerned themselves with an aspect of the process without paying attention to the broader process that the Supreme Court judges appeared keen on.
All this reveal that the Supreme Court determination of the petition was informed by factors that few or none of the lawyers took into account.
These include preparedness of the courts in disposing election disputes; intellectual context of judges in the new Judiciary; and the independence of the Judiciary from the Executive and Parliament. I wish to address how each of these played a role in the ruling.
Preparedness of judges in election dispute resolution (EDR)
The questions that some of the Supreme Court justices raised in the court revealed their good understanding of the electoral process.
This does not come from the blue. Since 2012, the Judiciary has invested a lot in understanding the process.
In fact, before 2013, there was an ad hoc working committee on election preparedness. Its main task included training the judges and magistrates on how to approach and dispose petitions that would be filed in the 2013 General Election.
Interestingly, judges of the Supreme Court at the time allegedly declined this training. They were not trained on electoral preparedness.
However, this training focused on processes and the content of the electoral laws and regulations. The failure of the Supreme Court judges to go through this training meant that they were not as equipped as other judges on how to address electoral disputes.
The ruling of the 2013 presidential election petition at the Supreme Court has some legal gaps that the lower courts continue to grapple with to this day.
In fact, the criticism of some aspects of the ruling remains a major subject of debate among lawyers and judges.
In preparations of the 2017 election, the Judiciary transformed the ad hoc working committee into a much more permanent organ on elections.
The Judiciary established and financed the Judiciary Committee on Elections to, among other things, continue training of judges and magistrates on elections dispute resolutions.
Justice Maraga and Justice Ebrahim, both at the Supreme Court now, led this committee. In preparing the members to address election disputes, the committee has had a broad and elaborate programme.
The content went beyond law to include other matters that touch on elections including balloting process. The training also focused on speedy resolution of disputes that would arise before, during, and after the 2017 General Election.
Important also is that the Supreme Court judges agreed to be trained too on election dispute resolution.
Aware that the ruling on the 2013 presidential petition was heavily criticised on account of several legal issues, the training focused on how to handle a presidential petition in a period 14 days in a much better manner than before.
Earlier, the Judiciary had requested the National Assembly to propose constitutional amendment to extend this period to 30 days. The National Assembly declined.
The court therefore had to budget for efficient and effective use of time within the 14 days. This efficiency was clearly demonstrated in the Supreme Court proceedings. The matter was disposed within the time provided in law except that the full judgment will come out later.
This level of preparedness clearly lacked among lawyers. This gap was evident in the court among the counsel. It may help in future for the senior lawyers to submit to a similar training as the judges went through to be able to deal with elections cases. The gap in their knowledge on electoral processes is evident thus far.
The second factor contributing to this position by the Supreme Court is the independence of the Judiciary.
The former Chief Justice Willy Mutunga invested heavily in promoting the independence of the Judiciary so much that today both the Executive and the Parliament fully submit themselves to the authority of the courts.
Even when they disagree with the position of the judges, they obey the orders made. This independence has not come all of a sudden.
JUDICIAL SERVICE COMMISSION
It is something that the Judicial Service Commission (JSC) has contributed to. The manner in which the commission recruits judges and the manner in which it relates to outside actors are matters that have helped the Judiciary to remain firm on independence. First, the judges are recruited through a competitive process.
They are interviewed in public and wananchi participate in their recruitment. The Chief Justice goes through this process. So do other judges.
Viewed this way, the head of the Judiciary and the judges and magistrates go through a labourious processes of initiation into the Judiciary.
Those heading the other organs of government, the President and Speakers of Parliament, go through an election process that is different from the public process that the judges and magistrates go through.
After going through this public process of interview, the Judiciary has made independence and adherence to the rule of law an important value.
The third factor to consider has been the intellectual context of the Judiciary today. Again in the last five years, and after the 2013 Supreme Court ruling, the judges appear concerned about peer review and accountability than before. Intellectual environment in the courts has been improving and everyone is worried about the intellectual context of their rulings.
The 2013 ruling was so criticised even internally that everyone today is worried about the intellectual basis of the position they take on any dispute.
Of course we have to await the final judgment of the presidential petition to establish the intellectual basis of the ruling.
All the same, within the corridors of the Judiciary, one hears the importance of peer review.
There is general concern about how peers view the rulings you make and whether the rulings are based on solid understanding of the law as well as the social context of the law itself.
While these are important observations that distinguish the context of the 2017 ruling from that of 2013, it bears mention that 2017 ruling was not by consensus.
Two judges had a dissenting opinion. Reading through the dissenting opinion even as we await their full opinion on this, one gets the feeling that they too understand the electoral context.
The training of judges mentioned above reflects somehow in their opinion. We shall have to wait for the full judgment to establish the basis of the dissent as well as the basis of the majority decision. The dissent, nonetheless, points to a possibility of having had a robust intellectual debate before the judges submitted their positions.
Prof Kanyinga is based at the Institute for Development Studies (IDS), University of Nairobi; [email protected]