Lawyers’ TV debate on Raila poll withdrawal failed to clarify issue

Friday October 13 2017

Citizen TV this week offered viewers an opportunity to watch live discussion on the legal and political implications of Nasa leader Raila Odinga’s withdrawal from the repeat presidential election set for October 26.

There were four lawyers on the panel and due to their obvious political affiliations, the discussion lacked objective analysis of the issue. I had hoped matters would be clearer after the debate but I was disappointed as this was not so. There was an endless argument on whether Mr Odinga’s anchoring of his withdrawal on the Supreme Court’s decision on the 2013 presidential petition was a risky move or would lead to nominations for fresh elections.

Two of the lawyers who appeared inclined towards Jubilee said Mr Odinga’s move was baseless because it relied on obiter dicta (a remark in a judgment that is said in passing) while the other two, who seemed to be aligned to the National Super Alliance, put up a strong case based on ratio decidendi (the legal principle upon which a decision in a specific matter is founded).


What the panel totally failed to settle was the following: Is it always obvious from the court’s written decision to identify what are obiter dicta and what is ratio decidendi? If not, they have to be figured out.

Secondly, how does one determine what portions of a court’s verdict, especially in the 2013 petition, were obiter dicta and those that were ratio decidendi?

Frankly, it is not enough to simply argue that obiter dicta only has a persuasive rather than a binding impact on other courts of low rank in future cases.

Is the persuasive value exclusive to all other courts except the one that made the “by the way observations”?

Lastly, it would be naive to expect all lawyers to have the same views on particular legal issues. However, failure to establish common ground on a matter as fundamental as the one that was discussed raises the question of whether the legal fraternity is part of the solution or problem to Kenya’s looming constitutional crisis.



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The move by Mr Odinga to pull out of the repeat poll has caught many off guard. It has left the nation confused.

The public is wondering what strategy the opposition coalition has.

This move has left the country in uncharted waters. Very few countries, if any, have found  themselves in such a political situation.

The situation deserves praise as it shows the rate at which Kenya, as a country, is maturing. It also shows how far we are ready to expand our democratic space.

The situation has firmly put both President Uhuru Kenyatta and Mr Odinga in the history books as great politicians of their time.