What have we learnt from the Supreme Court’s decision?

The repeat election is now over, complete with its myriad contestations.

Undoubtedly, the elections will be challenged in the Supreme Court. While the greatest beneficiary of a successful petition would be NASA and its leadership, it is doubtful these two parties will be filing any petition directly.

What one expects is a surrogate petition or even a totally independent petition advancing arguments which support the positions taken by NASA and some sections of civil society against the election. Indeed the only bar to numerous petitions is the requirement for a Sh1 million deposit prior to filing.

The faith in the courts to resolve severe political contestations is a positive in the process of developing Kenya’s delicate and youthful democracy. I have always held the view that while the annulment of the August 8 presidential election by the Supreme Court was reckless, inconsistent with the evidence availed and at variance with best practice in such matters.

But there were many positive aspects to the decision which can be an asset as we continue to grow our democracy. At the local level, the decision confirmed that the constitutional architecture that decrees separation of powers and checks and balances, in the exercise of executive powers, was no longer just theory.

The Judiciary was willing to flex its muscles in a manner inconsistent with the designs of a powerful executive. One wishes that these muscles were flexed in a less disruptive process, but in the final analysis, the court’s statement about its independence was important in the overall growth, not just of the judiciary, but other constitutionally independent institutions.

At a related level, the Supreme Court decision and several other court decisions in the same period have indicated to Kenyans that there are viable challenges to the wrongful exercise of executive power.

In a country where these powers are still unduly expansive, the recognition that the Judiciary can effectively check the executive is an important pressure valve in Kenya’s tense socio-political environment. Kenyans easily forget that one of the catalysts to the 2007/08 post-election violence was the lack of faith in the courts’ ability to independently adjudicate decisions in which the executive had an interest.

So, while the Supreme Court may be an inconvenience and frustrating, in the larger scheme of things, it is necessary for Kenyan’s long term faith in the country’s constitutional development.

At the international level, the excitement over the Supreme Court annulment has been monumental. The Kenyan decision has given impetus to various courts in diverse places to take a more proactive role in the management of electoral affairs. I have no doubt that the decision by the Liberian Court to postpone the re-run election was energised by the Kenyan decision.

I have listened to vibrant arguments all over the continent celebrating the Kenyan decision. Even in the West, courts are reconsidering centuries held jurisprudence on the annulment of elections.

What then is the way forward for Kenya’s judiciary? Firstly, the courts must ensure that their vibrant jurisprudence is informed by no other consideration other than what is lawful and just. If allegations of undue and unsavory interference are found to be credible, it would erase the faith that Kenyans are starting to have in this institution.

The courts must also be alive to the Kenyan realities and ensure that the decisions they make, even as they try and tame other governmental organs, take into account these realities. We live in the real world where decisions have consequences.

The courts must consistently warn themselves of the consequences of their decisions. On our part, we must recognise that the process of growing into a constitutional democracy is painful and fraught with errors.

What is important is that each painful experience is a lesson that informs future actions. We have probably dodged a bullet this time in that we have managed to stay within the letter of the constitution, but what valuable lessons have we learnt that will allow us to grow into a better nation? Only time will tell.

- The writer is an advocate of the High Court of Kenya.