On Friday, to everyone’s dismay, the Supreme court of Kenya consisting of the seven judge bench led by Chief Justice Maraga rendered the August 8th polls null and void. Even in my lawyer circle this came as a shock. Never before in Africa has a sitting, incumbent, head of state who has won a second bid, been rendered null and void. The Kenyan judicial system has indeed cast in stone its independence from the other two arms of government and displayed complete judicial autonomy and separation of powers. To many lawyers, the C.J Mr. Maraga has been viewed as a hero who sought to uphold the rule of law in regards to integrity, fairness and equality by upholding the national values and principles of governance as stipulated under article 10 of our constitution.
On the other hand, other lawyers including me have been quick and bold to criticize the move saying it’s too huge a Pandora’s box that the C.J has opened by making a judgment against Uhuru’s win. This precedent will now likely open a bevy of other election petitions.Yes, lawyers are going to make a lot of money but what will happen to future presidential election petitions and the previous precedent set in 2013?
It has been evident from his character from the time he took office that the current C.J is a person ruled by stern personal principles and the fear of God. One of the first things that the previous C.J Mr. Mutunga did was abolish the wigs and robes worn by law practitioners since he considered them archaic and colonial in nature. However Mr. Maraga, contrary to modernity did just the opposite, he reinstated them immediately he entered office. I can infer in general that the same robes and wigs thing has been done with this presidential election petition. Mr. Maraga, seeking to please his ego, wants to surpass all his previous predecessors by making his own precedents guided by his own understanding of facts and law.
In 21 days, the Supreme Court shall elaborate on its final judgment as to their reasons for decision (ratio decidendi). We can infer that Mr. Maraga’s bench team test for deciding the presidential petition was an analysis of full proof evidence and a burden of proof of beyond reasonable doubt. As from my previous article [LINK] before the granting of the order for IEBC to open its servers, the odds were in favour for jubilee until IEBC refused to comply with the orders. To me this is where the current shifted. The court realized that there must have been serious inconsistencies in the election process.
Justice Njoki Ndungu was quick to focus and point out on the physical part of the electioneering process hence the thorough scrutiny of the report from the IEBC servers. She said that an election is not the results but the process and if the process cannot be trusted then the results should not.
On the contrary Mr Mutunga’s team (which also included Ms Njoki in 2013) used a test of above a balance of probabilities and a threshold of below reasonable doubt. See my previous article for an explanation on the threshold the court uses in making decisions.
It’s worthy to note that the next election won’t be petitioned again because in 2013 the Supreme court envisioned such a scenario. They ordered that the “fresh” petition shall be contested between the petitioner and the president-elect, meaning there can’t be a petition for a petition.
Its evident from recent talks that NASA officials will again petition for removal of the IEBC officials; Mr Chebukati & his team. This would be an impressive move for NASA to their supporters but the impact on the new elections wouldn’t be as much since it’s the secretariat that does all the work while the commissioners oversee.They however are likely to face criminal proceedings for neglect of duty since someone has to take responsibility for the failed August 8th polls.
The judges based their determination for a fresh election on Article 10(It states about national principles & governance), Article 38 (that provides for political rights; rights to free & fair elections), Article 81 (that provides general principles for the electoral system) and Article 86 (that gives regulations & procedure on voting). The election was also extensively contrary to the Elections Act as depicted under sections 39 (i)(c),44, 44A & 83.
Despite Mr. Uhuru’s anger and resent to the court’s outcome, the court was well within its powers to make the decision as stipulated under Chapter 7, Article 140 (2) & (3) of the Constitution.
In my opinion, the Court also failed to include the International threshold for a valid election which is an error margin of 5%.
Further to this, rule 22 of the Supreme Court allows the Court to adopt the decision without reasons. This allows them to prepare the final judgment of the case which shall give us more information for their decision. For now, all we can do is wait and prepare for another election and a likely series of petitions from other elective posts in the August 8th polls.