Supreme Court to deliver judgment on NASA presidential election petition at 11am, Court Registrar announces.
Meanwhile junior lawyer Wahome Thuku says the ruling will be of monumental importance in terms of jurisprudence.
Here is Lawyer Thuku’s post:
Today, the highest court in the land will make its most important decision under the constitution. I say “its” because the first original jurisdiction of the Supreme Court in the constitution is hearing and determining Presidential Election Petitions.
LET me start by saying that everyone who followed the proceedings worldwide, including the foreign observers in the courtroom, has no doubt as to how the case will go. It was that clear for all to see and to hear.
However to me as a legal practitioner, its not today’s verdict that is more important, but the judicial reasoning of the seven judges. Its not the “what” but the “how” verdict will be. Yes the actual verdict is most immediate and evokes highest emotions but it will only be effective for five years when we hold another general election. Its the reasoning of the judges that will form part of our jurisprudence till the end of the world. (jurisprudence is the development of law).
In 2013 the SC delivered a short ruling and two weeks later released a detailed judgement of the petition. That judgement is today criticised (albeit with malice and ethnic prejudices) of lacking in judicial substance. Its described as hollow, only dealing with matters local as opposed to developing principles for the future international consumption. I reserve my opinion on it.
True, we lawyers look out for judgements that are creative and which explore new virgin grounds. Because court judgement are our tools of trade. We scavenge in law reports like an old garage site, looking for any old material (decisions) to support our cases. Some of the principles we quote, were developed by judges centuries back and have stood the test. They apply world over.
So if our SC is now asked to redeem itself, its not to declare the outcome in a certain desired way. The SC redemption will be to come out with a judgement that builds the house of law. What our seven judges decide today will be cited in future cases for decades if not centuries.
A Supreme Court is a very high judicial organ in the hierarchy of arbitrating institutions. Its word becomes a law almost cast in stone. That is the word we in the legal fraternity will be looking for, when the dust is settled. Its unfortunate that in this case, there is no much to decide on in matters law. It was almost entirely disputed on facts not law. A petitioner filing similar petition in 2050 will not be concerned about whether the 2017 presidential election was decided as credible or not. He will only be interested in how the judges decided it and what their thinking on the legal questions was. That will be the substance of the judgement today.