Supreme Court roots for decency and strict adherence to the law

“No person may claim or exercise State authority except as authorised under the Constitution”, states Article 2 of the Constitution of Kenya. Italian philosopher Antonio Gramci said that events are the real dialectics of history. An event, once dispensed with, puts paid to all guesses, all assumptions, whatever prediction.

And so on September 1, 2017 the Supreme Court of Kenya spoke. In so speaking, it has set out to convince itself and the world about its place in the democratic process as well as the true meaning of the Kenyan constitution.

I heard them to be saying that in so annulling the win of President Uhuru Kenyatta in the just concluded elections, they were not attributing any wrong doing to him. But the Independent Electoral and Boundaries Commission (IEBC) has been left with egg all over its face.

Election methods

To be sure, the requirements of the Constitution are so clear that the IEBC does not need an outside entity to tell it what it should do and how to do it. Article 86 of the Constitution, there exists explicit requirement to conduct an election using methods and systems that are simple, accurate, verifiable, secure, accountable and transparent.

How then is an election transparent when the systems cannot be opened for scrutiny? That’s the question begging for an answer. How one concludes an arithmetic and stock taking exercise minus the figures and items involved becomes an effort down the slippery road of arrogance and impunity.

The chairman of IEBC decided to hide behind the Court of Appeal ruling which inter alia stated that the presidential results as announced at the polling station and aggregated at the constituency is final.

The import of the Court of Appeal ruling was to prevent the IEBC from committing mischief, calculated or otherwise.

The court believed that results as at the polling station, the place where the votes were cast in the first place, cannot be supplanted by some other moderation by people in faraway Nairobi. In 2013 as today, the questions for consideration revolved much around the veracity of forms used in tabulating results and whether there can be a possibility of interference as they make their way towards the National Tallying Centre.

A safeguard was introduced, which safeguard was always available even in 2013. The results from the polling station were to be instantly sent to the National Tallying Centre by electronic means. The intention was that any variance later on the hard copy form would be deemed as fraud.

Elections are expensive and emotional exercises. Probably the Kenyan ones are just slightly louder. In fact after the 2007 elections ours have gained notoriety for the fact that the aftermath can generate chaos, destruction and deaths.

The peace industry as fronted by bodies like Kenya Private Sector Alliance (Kepsa) also have some stock taking to do. An election is primarily an audit query at the end of it.

While the voter gets patronised and lectured on accepting results or moving to court in the alternative, much must now be said for and to the IEBC. In fact it appears it was taken for granted that the court like many others elsewhere have no stamina to invalidate the presidential election.

Our elections are very expensive per vote. Even as we talk, there are billions still pending that IEBC needs to pay out just for the concluded elections. People who aspire to lead IEBC must convince themselves that at the very least, they can count and have the courage to announce the result of that counting.

They must not let forms disappear into the Bermuda triangle as Pheroze Nowrojee put it. They must have the ability to collect and collate forms. The logistics for that must not be said to be such humongous. The chance to head IEBC is not an opportunity for cat walkers and dismissive and hardnosed blokes. Chebukati simply needed to collect and collate all form 30A’s.

Thereafter, he would have announced a more agreeable result.The Maraga court will go down in history as one that collapsed law both in logic and practice. It is not the business of the court to be wary of imaginary demons lurking in the corridors as they make their decisions.

As Henry Indangasi told us long ago, “critical thinking is about taking a moral position. It is about the quest for truth, truth with a capital T”. American historian Kenneth Janda has told us that when the judiciary puts it foot down, it may well be the most powerful branch of government.

Sense of justice

The Supreme Court has shown us that when people are armed with a simple sense of justice, then these people, however plain and unsophisticated, are the ones who will carry the day.

Moving forward, shallow activists, lawyers with bloated egos, inexperienced faces ornamenting the benches, bitter pseudo intellectuals, wielders of degrees, these must give us a break. Let us celebrate courage, experience and the belief in decency and truthfulness. Let Kenya bask in the glory of international jurisprudence.

I concur with lawyer Ahmednassir Abdullahi but for different reasons, let us cast aside fiction.

Mr Marenya consults for Asante Media