By George Kegoro
Last weekâ€™s Supreme Court decision to reinstate Othaya MP Mary Wambui demonstrates the uncertainties that still characterise the search for electoral justice in the country, despite the reforms that have recently been attempted to address this area.
Before the passage of the 2010 Constitution, shortcomings in electoral justice revolved around delays by the courts in concluding suits challenging the outcome of elections, the expense of such suits and an increasingly technical approach by the courts in dealing with such disputes, often negating substantive justice.
The constitutional reforms addressed some of these issues and, for example, established the Supreme Court as a new court with the jurisdiction to deal with disputes relating to the election of the President.
Presidential petitions were previously handled by the High Court, and, while no right of appeal existed, the Court of Appeal controversially listened to an appeal from the High Court in a petition by Kenneth Matiba against Daniel Moi, after the 1992 elections, amid setbacks that Moi had suffered in the High Court.
Uncertainties arose on whether the right of appeal applied only in that petition or would apply in future. It took the 1997 Inter-Party Parliamentary Groupâ€™s amendment of the constitution to create a right of appeal to the Court of Appeal to clarify the situation.
In entertaining disputes other than for presidential elections, for which it has no jurisdiction, the Supreme Court has set the country in the same sphere of uncertainty as the former Court of Appeal had done. In future, people who lose appeals will be tempted to contrive a second appeal to the Supreme Court.
The new Constitution addressed the problem of delays by requiring that electoral disputes be resolved within defined timelines. The Matiba vs Moi petition was decided after a 12-month delay while the Kibaki vs Moi dispute was concluded after 24 months.
The constitution now requires presidential petitions to be completed within 14 days.
This is the period it took the Supreme Court to give the country a decision in the Odinga vs Kenyatta petition. While 14 days is quick, it asserts massive pressure for time on the court and the parties, and some of the criticism against the Supreme Court process in the presidential petition resulted from the very short timelines required for deciding the case.
Disputes arising from parliamentary and governorsâ€™ elections are handled by the High Court and a restricted right of appeal to the Court of Appeal, confined to â€œissues of law,â€ is allowed. The constitution requires the High Court to resolve electoral disputes within six months and appeals to the Court of Appeal must also be decided in six months.
In the past, delays in resolving parliamentary disputes were so severe that parliamentary terms elapsed before some of the petitions were decided.
It is a credit to the High Court that, in relation to petitions from the 2013 elections, the demanding timelines have been met.
This is the more creditable because the High Court received far more petitions than had been filed after previous elections.
Similarly, the Court of Appeal has been struggling to meet its deadlines and the outlook is that it is also doing well.
As indicated, no right of appeal exists beyond the Court of Appeal in disputes from parliamentary and governorsâ€™ elections. The first batch of decisions made by the courts appeared to be guided by this view until the Court of Appeal invalidated the election of Meru governor, Peter Munya, on appeal.
Other than its original jurisdiction in presidential electoral disputes, the Supreme Court is vested with a qualified appellate jurisdiction on cases from courts below it. One can appeal to the Supreme Court â€œas of right in any case involving the interpretation or application of this Constitutionâ€™â€™ and also â€œin any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved.â€
It is this jurisdiction that Mr Munya invoked to obtain what was previously viewed as an unlikely foothold in the Supreme Court. This created a domino effect and several other persons, resigned to their fate after failing in the Court of Appeal, now found they could go to the Supreme Court.
Having allowed Munya, it would have been difficult for the Supreme Court to shut out the others. Because this is a restricted right of appeal, all the parties that have made their way to the Supreme Court have had to make clever arguments to the effect that the decision of the Court of Appeal in their case involves the interpretation or application of the Constitution, as opposed to simple claims that they do not accept the decisions appealed against.
A lingering accusation against the former Court of Appeal, the one that the Supreme Court supplanted, is that it was pre-occupied with technicalities, at the expense of substantive justice. For example, having delayed judgment in the Matiba petition, the court then dismissed the petition because Matiba, unable to write because of a disability he had suffered while under arrest, had not personally signed the court papers, as required by law.
The Kibaki vs Moi petition was also dismissed on a technicality, that Kibaki had not served the petition papers personally on Moi, a requirement of the law. This particular decision was to inspire a provision of the new Constitution that the service of petitions does not have to be on the individual sued.
Chief Justice Willy Mutunga, aware of the weight of history, enacted rules of procedure that de-emphasise technical compliance and promote substantive justice, which is also a requirement of the 2010 Constitution. The pressure generated by the Odinga petition was, however, sufficient to make the new court depart from the high plane of substantive justice, as the court disallowed a further affidavit filed by Odinga, ruling that to allow it would prejudice the other parties.
This same approach characterised the decision of the court in the Wambui case. The original petition against Wambui was filed by reference to the Elections Act, which requires petitions to be filed within 28 days from the date the results are published in the gazette.
WITHIN THE TIME
The Constitution, however, provides that the 28 days start running when the results are announced by the returning officer. A mathematical computation shows that Mr Peter Gichuki Kingâ€™ara, the petitioner against Wambui, filed within the time allowed by the Elections Act, but six days late if time is computed by reference to the provision in the Constitution.
However, in both the High Court and the Court of Appeal, the issue of the possible late filing had not been raised, and the petition was decided on other grounds.
The computation of time first became an issue when the parties reached the Supreme Court and was the last of 12 grounds on which Wambuiâ€™s appeal was based. By then the court had decided a portion of the Shahbal v Joho petition, determining that time runs as provided in the Constitution and that the Elections Act, therefore, contravenes the Constitution.
In the Wambui judgment, the Supreme Court addressed only this issue, finding as it had done in the Joho case, that the relevant provision in the Elections Act contravened the Constitution and was, therefore, void. By reference to the Constitution, Kingâ€™araâ€™s petition in the High Court was filed late and was therefore incompetent. It is on this ground, and this ground only, that the court allowed Wambui back into the legislature.
Having made a decision based on this technicality, the court found it superfluous to determine the other issues that had been raised in the petition.
A reading of the judgment reveals little distinction between the approach by the Supreme Court and the former Court of Appeal.
Both are courts of technicalities, and surprises. The judgment makes clear that the exclusion of the Odinga affidavit by the court, which has since been criticised, was not an aberration but part of the courtâ€™s doctrine to promote â€œpredictability, certainty, uniformity and stabilityâ€™.
While Kingâ€™ara demonstrated that he had a reasonable basis on which he computed time, by reliance on an Act of Parliament, this was not enough to save him.
A troubling issue regarding this judgment is how the court handled Kingâ€™araâ€™s own complaints regarding the computation of time in Wambuiâ€™s appeal. When the Court of Appeal decided against her, Wambui filed a notice of appeal in the Supreme Court, well within the 14 days allowed by the rules of the court. Thereafter, her legal team pursued an application in the Court of Appeal for leave to go to the Supreme Court, in the middle of which Munyaâ€™s appeal to the Supreme Court was admitted.
Realizing that they could also have filed in the Supreme Court directly, rather than with the leave of the Court of Appeal, the Wambui team then filed the petition but by then the 30 days allowed for filing had elapsed and had been exceeded by 33 days.
This issue was specifically raised during a preliminary hearing before Justices Kalpana Rawal and Mohammed Ibrahim, as Kingâ€™ara had applied for the dismissal of the Wambui petition for late filing. The two judges dismissed the preliminary objection, holding that in the public interest, they had the discretion to allow Wambui to file late.
However, Kingâ€™ara himself found no such luck when Wambui raised the issue of time in relation to his filing at the High Court. Kingâ€™araâ€™s legal team claims that they also raised the same issues of the late filing to counter her similar claims, when the main petition was heard.
However, these are not reflected in the judgment of the court.
It is difficult to understand how, towards one party, the court showed so much leniency when interpreting time, but was so strict to another party in the same proceedings.
The uniformity that the court said it was promoting is not borne out by the differing treatment of Wambui and Kingâ€™ara by the court, and leads to the conclusion that, in the Supreme Court, what is good for the goose is not necessarily good for the gander.
While the Supreme Court was created as a stabilising factor for the countryâ€™s legal system, it is difficult to argue that it is having this effect so far.
Like in the presidential petition where the courtâ€™s decision left many unanswered questions, it has done so in the Wambui petition as well.
George Kegoro is an Advocate of the High Court of Kenya. This article first appeared on Daily Nation