It was supreme test for the top court

By Abdikadir Sugow

The Supreme Court judgement on presidential election petitions was not only historic for its profound interpretation of the law, but also because of its immense political significance.

During the marathon sittings before the six judges in the country’s highest court, Kenyans witnessed live proceedings involving the cream of the legal profession argue before a live TV audience, in a remarkable judicial process affirming the coming of age of the 2010 Constitution.

It was certainly not only a Kenyan affair since Africa and the world was keenly following the unfolding legal drama as the Supreme Court became the final arbiter of a case with far-reaching implications for the growth of democracy and constitutionalism.

This was the ultimate test for the Supreme Court to deliver a ruling that recognises the sovereignty of the Kenyan people and their inalienable right to determine the form of governance of their country, and a government based on the values of human rights, equality, freedom, democracy, social justice, and the rule of law.

While Kenyans are still reflecting on the Supreme Court decision, they are also pondering the weighty matters that were before the judges as evidenced by the volumes of the petitions, supporting affidavits, submissions and the responses from a cast of brilliant lawyers.

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The public jury on the landmark judicial decision is still out since, it must have made some happy and others sad, bearing in mind that the electoral process, though largely peaceful, its outcome exposed the deep ethnic divisions.

In the minds of the Kenyans, the judges’ decision was expected to be anchored in the Constitution and the Elections Act, which place a high premium on the ability of constitutional institutions to deliver a free, fair, and transparent electoral process, with credibility, integrity, and verifiable results.

This demand was crucial in the March 4 General Election, bearing in mind the tragic and violent events of 2008 that took Kenya to the brink of catastrophe following disputed presidential election results.

Never again

Kenyans had said never again to this devastating way of resolving election disputes.

With the establishment of the Supreme Court, the judges faced the supreme test of asserting the separation of powers between the three arms of government – the Executive, the Legislature, and the Judiciary through the people and their Constitution.

It asserts the basic philosophy of the people of Kenya, and the principles, values and national laws to which Kenyans are committed. The paramount need for a credible and fair electoral process put the Independent Electoral and Boundaries Commission (IEBC) in the dock as it faced a spirited legal challenge from the first petitioner, Prime Minister Raila Odinga and the second one, the Africa Centre for Open Governance.

Complex issues

This was a demonstration of the legal discipline exercising its mandate to resolve the dicey interrelationship of legal and political phenomena.

Politics is perceived as the identification of a complex of economic, social or moral values chosen to be implemented by the public authoritative apparatus into the community using lawmaking as seen in the past two weeks.

Law in the political realm can be stormy as it came out in the lengthy proceedings in a strict short timeline of 14 days stipulated in the Constitution for the judges to make their final submission. 

As the dramatic sessions continued well into the night, the judges had to intervene to restrain frayed nerves in dramatic courtroom scenes starring counsel for the petitioners and respondents.

Chief Justice Willy Mutunga who calmly handled the proceedings in concert with the six other judges Smokin Wanjala, Ibrahim Mohamed, Philip Tunoi, Jackton Ojwang’ and Njoki Ndung’u, cautioned the litigants in their conduct before court as he asked them stick to the schedules and matters before the court.

‘Not a judicial monarch’

Mutunga jokingly said he is not a ‘judicial monarch’ and understood the weight of the matters before him and the other Supreme Court judges, as the Constitution recognises that the Kenyan people are one nation bound together by common ideas, history, and shared experiences.

He reminded lawyers to “look at the bigger picture”, reminding them and the Kenyans glued to their television sets that despite the petitioner (Raila Odinga) and the third respondent Uhuru Kenyatta being the adversaries, “they are our brothers in our country”.

The CJ clarified that in all the procedures the court was taking, including the scrutiny of the voting in some polling stations and tallying, the court was “not out to make anyone happy” but to come up with a decision based on the law.

He was ware that the Supreme Court, of which he is the president, faced the test of displaying its capability to assert the essential values of human rights and democracy enshrined in the Constitution for posterity.

In making its ruling, the court had to embrace the fact that there are certain known values and principles that guide all Kenyans regardless of their positions.