Supreme Court should always stand for the truth and justice

Earlier this month, the Supreme Court celebrated its 12th year. Though the occasion was cited as an opportunity for introspection, it was used largely to celebrate the court’s achievements than to introspect. There is probably a good reason for focusing on the positive.

In a country where institutional rot, inefficiency, and incapacity is the norm, there is no doubt that this institution, lobbed into Kenya’s judicial system by the 2010 Constitution, has generally left a positive mark. Granted, its 12 years, while marked with numerous accomplishments, have also evidenced some shortcomings, exposing the court to legitimate criticism. 

Three of the court’s significant achievements stand out. One of the court’s most delicate responsibilities is its exclusive jurisdiction in determining presidential election petitions. Contestations in Kenya’s presidential elections have historically been very intense.

In 2007, they led to near civil war when the losing candidate refused to take the dispute to court, arguing that the court was politically partisan. The framers of the Constitution were determined to avoid such an eventuality and therefore shielded the court from any threats to its independence.

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The court has since its formation determined four presidential petitions, and while parties who lost the petition have lobbed all manner of epithets at the court, there is no doubt that within the structural challenges that cloud the process, including the limited time to conclude the petition, and the highly charged political environment in which the petitions are determined, the court has acquitted itself reasonably well.

Kenya’s Supreme Court is one of the few courts globally that have nullified a presidential election, but the court also bravely upheld the win of a “non-system” candidate in 2022. That is a rarity in Africa where the state is so powerful that institutions that dare to challenge it rarely live to celebrate the achievement.

The second major accomplishment of the court is building rich jurisprudence on critical areas in the process of interpreting the Constitution. The court’s decisions in various advisory opinions including the gender representation case, the division of revenue dispute between the Senate and the National Assembly and the dispute over the National Treasury’s management of the budget process are quoted liberally in many jurisdictions.

In some of these decisions, the court innovatively filled gaps occurring in the Constitution and thus averted constitutional crisis on critical national issues. For instance, in the Senate case against the National Assembly, the court “wrote into the constitution” the mandatory involvement of the Senate in the Division of Revenue Bill.

The Constitution had omitted the Senate from such involvement leading to a constitutional absurdity where the Senate was excluded from the most important financial Bill affecting counties yet that was the sole reason for its establishment.

Thirdly, the court has clarified and settled the law on critical areas where the Court of Appeal has either issued differing opinions or had erroneously interpreted the Constitution. This has occurred particularly in election disputes and most recently on the law on public participation.

It is however on this last point where criticism of the court has been most vibrant with allegations of jurisprudential inconsistency. On election petitions for instance, the court has been accused of dithering, occasionally walking back on its own precedents without expressly stating that it was revising its opinion, being the only court the Constitution accords this privilege.

The court has also been accused of unreasonable delays in concluding cases, but more critically, of impropriety, with charges that justice is on sale in its hallowed corridors. Allegations of impropriety, though presented with much gumption, have however not been supported with evidence.

These consistent and continuous allegations, even if unsupported, however leave a disturbing cloud on the court. It is therefore essential that those who make allegations on impropriety support the same with evidence so the court can be weeded of any contaminants.

But the court also owes a duty to the country to introspect on this matter and ensure it has done all that is humanly possible to rid itself of any impurities. The court’s credibility is so critical not just to the image of the Judiciary but to the stability of the country, that it must guarded jealously by all its internal and external constituents.

-The writer is an advocate of the High Court