Ruling ultimate test for justice and democracy
Yesterday the Supreme Court made a historic ruling with far-reaching implications on freedoms, democracy and justice for the nation and people of Kenya.
The decision was bound to cause grief to either of the parties – the petitioners Raila Odinga and seven others, versus the respondents, the Independent Electoral and Boundaries Commission (IEBC) and William Ruto.
One of the most watched judgments on electoral laws in Kenya and across the globe, the respected New York Times described the case thus: “Kenya has one of the most transparent electoral systems, experts say, but that has not prevented a raft of accusations and conspiracy theories around the presidential race. The outcome is in the hands of the Supreme Court.”
At the end of gruelling and meticulous 14-day hearings before the country’s finest lawyers, the seven-judge bench sought divine intervention as they retreated to rule on their unenviable task.
Chief Justice Martha Koome, the court’s president, agreed the task was difficult but assured the ruling would “promote the Constitution, harmony and justice”, the roots of our democracy.
After the intense exercise in the science and philosophy of law with strict deadlines all legal teams adhered to, Deputy Chief Justice Philomena Mwilu and the bench appealed for “prayers to God for a very high sense of discernment to return to Kenya a judgement that Kenyans expect.”
Whether the court achieved this noble objective in law during a tense and polarized period in Kenya’s history that has literally turned the country’s political, economic and social composition inside out, will be known in the coming days.
In a deeply divided nation captured during the election and outpouring of emotions over yesterday’s judgment, Kenya serves as a luminous example to the world on the application of jurisprudence as a mechanism of resolving disputes in election systems.
The judges performed their duty with exemplary devotion and a keen sense of legal finesse, summarising the contentious matter before them in probing questions as a fairly accurate compass on the direction of the eventual outcome of their deliberations.
Experts on the case abound in the court of public opinion and information where the mainstream media has performed commendably, but not social media. The apex court had in May sought to codify the sub judice rule to protect the integrity of the judicial proceedings during the petition. However, the decision was quashed by the High Court mid-August, judged unconstitutional for usurping legislative power and lacking public participation.
The top court intended to curb the rampant diatribes in social media where advocates trade insults, launch scurrilous attacks and spew vitriol, all in the name of exercise of the freedom of expression.
Such is the power of the freedoms and sovereignty Kenyans enjoy vested in the Constitution, under the doctrine of the separation of powers between the Judiciary, the Legislature and the Executive.
The Supreme Court’s judgement teaches a critical lesson in resolving electoral disputes. Only the true vote must count amid the lurking danger of manipulation of the electoral process and justice.
That while the burden of proof empirically and evidentially rests with the petitioners, the premium investment in the supreme law – the Constitution – demands that respondents execute a transparent, inviolable, credible, free, fair, accountable and verifiable election.
On the scale of openness, truth and justice, the vote must pass the rigorous test of freedom and democracy that strictly adheres to the dictates of the Constitution.
— The writer comments on political and justice affairs.
