By Steve Ogola
BEYOND THE MERITS: PREVAILING CONTEXT AND POSSIBLE INFLUENCE ON JUDICIAL APPROACH
This time round the Presidential Election Petition will be determined in the context of some significant challenges, both internal and external to the Supreme Court. This context may ultimately influence the manner in which judges determine the Petition.
1) Public Interest;
2) Poisonous/toxic political environment; and
3). IEBC’s ability to comply with Court Orders.
1) Public Interest
So far, there are two perspectives on what constitutes Public Interest.
According to NASA, public interest means “insisting on faithful implementation of the Constitution,” as was intended in order to inspire national renewal in our system of governance. This approach matches the Supreme Court’s legal philosophy of “strict fidelity to the Constitution.”
Jubilee, on the other hand, views public interest through the lenses of “money spent” in conducting elections, Kshs. 14B, and time lost, thus the need to interpret the law in a manner that makes reasonable accommodations in favour of “upholding the intention of the voter” and, where the intention is clear, to allow the country to move beyond elections.
Ultimately, what the Court thinks is the public interest is what will move it closer to either party.
2). Toxic Political Environment
Both Jubilee and NASA have demonstrated that it is not beyond them to innovative or operate outside the Constitution, the consequences not withstanding.
Where the two main political formations think they are immune to the legal processes, does it really matter how the Court decides?
Where the bindingness of Supreme Court Judgment is not assured, does it matter whether the Court upholds or nullifies the election?
Since the law and common sense are not removed from each other, and since Judges are not immune to reason (lived realities), can it be expected that the Court’s decision will be a direct response to the politics of the nation?
3). IEBC’s ability to respond to the Court’s Directions
Granted, this Petition is a “referendum” on IEBC. Did IEBC capture the paradigm shift in election management as explained and required by the Supreme Court? Or did IEBC maintain a rebellious and unrepentant attitude and as a consequence did not care to “innovative within the challenges” to improve election management?
The Supreme Court stated that it was happy to excuse anything but “compliance, openness and competence.” Did IEBC meet this THREE-TEST STANDARD?
If the Court is of the view that IEBC has an uncaring attitude or is grossly incompetent, would it still nullify the election?
If election nullification presupposes that IEBC has the capacity to reorganize and improve election management to match expectations of the law/Court, are two attempts not sufficient to capture the soul of the law?
Elections are at the centre of democracy, and the Supreme Court is now at the epicentre of Kenya’s electoral democracy.
Yet the challenges that are internal to the Supreme Court are equally well documented. Two obvious ones include:
1). Credibility dent; and
2). Jurisprudencial disharmony;
1). Credibility dent
The absence of Supreme Court justices on October 25 was not well received. This has created the perception that the Court may be susceptible to external manipulation through threats and intimidation.
How will the Court correct this perception? A more detailed explanation on the absence of the judges, will deal definitively with conspiracy theories around the Court’s ability to preserve its independence.
2). Jurisprudential disharmony
The September 1, judgment exposed significant gaps in the Court’s ability to close ranks while maintaining different interpretive positions in law. Beyond the rich jurisprudence in the dissenting judgements (a sure investment for the future), the dominant view by jurists was that the dissenting opinions constituted an “indecent attack” on the majority opinion.
Can it reasonably be expected that the dissenting judges will maintain the philosophy that “where the intention of the voter is clear,” election outcome ought not to be disturbed?
Similarly, can it be expected that the majority will maintain the philosophy that “election is a process and compliance must be every step of the way?” Or,
Can it be expected that the judges will strike a harmonious cord, and issue a unanimous decision, if only to preserve “unity on the bench?”
The reinvigorating message is that it would be naive to think that the ongoing judicial process will offer magical solutions to the political problems.
Irrespective of how it decides, or the influences on the decision, the incontestable fact is that the Supreme Court has a very limited role, that is, to determine whether to uphold or invalidate the October 26 Fresh Presidential Election.
Beyond that, Kenyans will have to look elsewhere for solutions.
Perhaps a practical sense approach would be to craft a parallel complementary mechanism to address what the Court cannot deliver.