By Eliud Owalo
On the 7th July 2014, the opposition released a raft of resolutions covering a total of 13 issues, out of which questions have to be formulated and presented to the Kenyan people in a referendum.
The resolutions followed a series of consultative public rallies across the Country during which hearing and collation of peopleâ€™s grievances and concerns were noted. Of the 13 issues identified, there is the peopleâ€™s expressed dissatisfaction with the performance of the Independent Electoral and Boundaries Commission (IEBC) and the overwhelming feeling that it needs to be overhauled and reconstituted.
However, my considered opinion is that there was a technical lapse in the omission of the performance of the Supreme Court from the issues that need to be subjected to national debate through a referendum; more so in relation to its handling of election petitions since it came into existence in 2012.
Deductively, the failure of IEBC to perform professionally, impartially and competently during the 2013 general elections in the Country has surprisingly been sanitized by questionable rulings on petition cases by the Supreme Court despite the fact that the Court of Appeal on its part has faulted and refused to be bound by such rulings.
The Supreme Court rulings have largely supported the Electoral misdeeds and misconducts of IEBC. In this regard, the 2013 Presidential Election Petition No.5, filed by Hon. Raila Odinga was the first such case presented to the Supreme Court foradjudication. The way in which the petition was handled and concluded not only startled the entire legal fraternity locally and abroad but also brought into question the impartiality of the Supreme Court in handling such cases, and hence its raison dâ€™etre.
Even ordinary citizens less schooled in legal matters doubted the competence and impartiality of the Court to serve as a neutral arbiter in electoral disputes.
Following the much criticized and faulted ruling in the Raila versus Kenyatta petition case, the Supreme Court has continued to raise a lot of legal concerns and resentment in legal circles by overstepping its jurisdiction and making disturbing rulings in election petitions, which rulings are clearly intended to support the erroneous ruling it made in the 2013 Presidential Election.
The Supreme Court, though the highest legal Court in the land, has been criticized by the Court of appeal which has faulted its rulings on election petitions and is not keen in being bound by such rulings. On its part, the Constitution is explicit on the mandates of each level of the judicial system, starting from the magistrate Court, in addressing electoral disputes.
It is instructive that a Supreme Court Judge who participated in the hearing of the 2013 Presidential Election petition also faulted the Court in the way it handled the case. The impact of the Supreme Court ruling on that case traumatized and adversely affected the majority of the citizens in the country.
Clearly, the Supreme Court appears to be on a suicidal enterprise aimed at justifying its faulty ruling, and scholars are unhappy and concerned that the Court is in fact frustrating the development of intellectually sustainable legal jurisprudence in the Country. No wonder scholars, jurists and even lower courts have declined to apply the Supreme Court Presidential election Judgment as a precedent.
To date, the Court has turned down seven rulings of the Court of Appeal on Election Petitions on flimsy grounds such as legal technicalities which should be less emphasized vis-avis substantive justice. Further, it has stepped out of its jurisdiction by handling matters which fall within the purview of the Court of Appeal. Besides, the Supreme Court has curiously emphasized legal technicalities instead of promoting substantive justice as stipulated in the constitution.
Controversial judgments made so far by the Court include the Raila versus Kenyatta petition case, Governor Munya petition case, Governor Obado petition case, Othaya MP Mary Wambui petition case and Garissa Governor Nathif Jama petition case.
It is noteworthy that the purpose of establishing a Supreme Court was essentially to deal with disputes relating to the election of the President, and issues requiring constitutional interpretation. It was also intended to improve the administration of justice, which responsibility was bestowed in the Court of Appeal by the previous Constitution. But the Supreme Court now appears worse than the former Court of Appeal. Its justices have evidently failed to demonstrate professionalism, impartiality and competence in their judicial work. And perhaps, this explains why in the history of Post- independence Kenya, a citizen has filed a petition with the Judicial Service Commission (JSC) seeking the removal of the Chief Justice from Officeon grounds of incompetence and breach of judicial code of conduct.
The incompetence and impartiality of the Supreme Court puts the Country into a very difficult position for it is the Court of last resort. One fundamental issue relating to the performance of the Court in election petition cases concerns the future choices of the people for the Court as an arbiter in election disputes.
Indeed, the Court has created huge public doubt and mistrust in its capacity to perform with impartiality. On the basis of its performance so far, the Supreme Court needs to be subjected to the scrutiny and verdict of the sovereign Court of public opinion. Admittedly, this is the actual highest political Court in the land and should be able to determine in a referendum whether it approves or disapproves of the competence of the Judges of the Supreme Court as is currently constituted.
Obviously, without re-constituting the Supreme Court and setting aside some of its rulings relating to the 2013 elections petitions, the public will lose confidence in it to handle future election related disputes. So it is imperative to formulate and present to the Kenyan people a question on the extent of the jurisdiction, competence and impartiality of the Supreme Court for a decision through a referendum.
The writer is a Management Consultant based in Nairobi.