Jubilee tactics have left constitutional order in disarray

Saturday December 2 2017

President Uhuru Kenyatta takes oath of office

President Uhuru Kenyatta takes oath of office during the inauguration ceremony on November 28, 2017. PHOTO | PSCU 

By GEORGE KEGORO
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In the next few days, the Supreme Court will provide reasons why it dismissed the petition seeking to annul the October 26 presidential election rerun.

In 2013, the court, then newly-established, took refuge in procedural technicalities in rejecting the first-ever presidential petitions presented to it, which challenged the election through which Mr Uhuru Kenyatta first came to power.

As a result of the manner it handled the petitions, the court faced withering criticism, which included calls for its disbandment, based on a view that it had failed the primary test for which it was established: The moderation of political competition.

ANGRY REACTION

The historic decision on September 1, when the court annulled the August 8 presidential election, must be understood as resulting from two conditions.

First, the election in question had been managed poorly, leaving no other option when the court was presented with a case for its annulment.

Second, the court was carrying the burden of 2013, when it ran away from its responsibility to adjudicate fairly in a difficult dispute.

If it failed for a second time, that would almost certainly have been the end of the court as its relevance would have come under mortal doubt.

Because of these factors, annulling the election was the only decision the court could make.

What remains unclear is what reaction the court expected would follow a decision annulling the election. Did it expect the kind of political fury that followed? If it had expected that level of rage, would the court still have nullified the election?

Besides the angry reaction by the political establishment, the reaction by the Independent Electoral and Boundaries Commission must be considered.

The annulment of the election was primarily an indictment of the IEBC, which should have borne the political and moral burden of the nullification.

IEBC

After the annulment, having initially shown regret, IEBC soon recovered and took a quietly insolent position.

As minutes for preparation for the new election ticked, IEBC resorted to bureaucratic tricks, including petty infighting and asserting that no action to improve the management of the poll would be taken until the full judgment of the court was released.

When the judgment came, IEBC declared self-absolution from responsibility for the annulment of the first election, and it was now business as usual.

While Jubilee should have been angry with IEBC for bungling an election in which it would otherwise have been declared winner, the party was, instead, angry with the judges, as though on behalf of IEBC.

By lashing out at the court, Jubilee was protecting not only its own interests but also the IEBC which, thus, did not have to defend itself.

Jubilee’s anger at the court was a message to IEBC that there was nothing wrong with the management of the annulled election, and therefore nothing to improve on.

The Supreme Court must have expected that. Following the unprecedented annulment of an election it had conducted, IEBC would be committed to more accountability in the management of the fresh one.

Protected by Jubilee, IEBC erected bureaucratic inertia, in effective asking the Supreme Court, “If it is so easy, why don’t you come and do it yourself?”

Thus, what the court had thought was a brave decision reclaiming the rule of law, was turned against it.

MAJESTIC POWERS

By the time the court heard the petitions against the new election, the conduct by the political establishment had made it clear that if the judges dared to annul it, responsibility for what followed thereafter would be borne solely by the Supreme Court.

On paper, the Supreme Court possesses majestic powers. Clearly, the court was living in the bubble of its formal mandate when it annulled the first election.

Following the annulment, the vile insults against the court, also extended to the partners of the court; the quick loss of status by the judges, through the exposure of private communication; the removal proceedings before the Judicial Service Commission; the persecution of the Registrar of the Supreme Court, an indirect attack on the judges; the personal insecurity created against judges, including by assembling mobs to barrack them and shooting a member of the personal staff of the Deputy Chief Justice, all soon communicated to the court that the bubble had burst.

During his inauguration speech last week, President Uhuru Kenyatta was rewriting history in reference to these recent events. Despite the manner in which his party had treated the court, the President said: “However serious our grievances, the law must reign supreme.”

He added, untruthfully: “When the Supreme Court ruled to invalidate our election, despite our having won…we complied.”

FUTURE

Because it is reluctant to discuss the difficult circumstances surrounding its work, and which must be a factor in its decision to uphold the second election, the court will struggle to justify its ruling if it is to remain consistent with the standard it established when it annulled the first poll.

Of these circumstances, the most confounding one is the fact that the political establishment has managed to flip the burden of accountability so that if the court annuls an election, it also takes responsibility for the contrived political difficulties that follow, and which are supposed to defeat a better repeat poll.

Since the court cannot run elections, but will still be blamed for what follows, it is unlikely that judges will annul a presidential election in the near future.

The circumstances of the Supreme Court are reminiscent of the International Criminal Court experiences in this country.

While on paper, the court had all the power to bring accountability for the crimes committed during the 2007/8 post-election violence, the political establishment caricatured the court when it tried to exercise those powers.

Against the Supreme Court, Jubilee has applied the script it used against ICC, leaving our constitutional order in disarray.