Dr Chidi Odinkalu, Chairperson of the Nigerian National Human Rights Commission:
I read this judgment moments ago. The big issues are ultimately up to Kenyans. I make no comments on those.
Speaking as a lawyer from Nigeria on a first reading of this judgment, I have to say it is tragic that they have relied on some of the most awful and questionable jurisprudence from the Nigerian Supreme Court on the question of elections. Writing in 2007, Professor Ben Nwabueze, arguably Africaâ€™s best known expert in comparative constitutional law and a Senior Advocate of Nigeria (SAN) accused Nigeriaâ€™s Supreme Court of having played a â€œdiscreditable partâ€ in procuring illegal mandates from the elections of 2003 and 2007 presidential elections in Nigeria.
He adds that â€œthe governments, federal and state, formed on the basis of those elections, had the effect of foisting illegal governments on the country since 2003â€ [Ben Nwabueze, How President Obasanjo Subverted Nigeriaâ€™s Federal System, xxx (2007)]; and stopping short of accusing the Court outrightly of corruption, laments the failure by â€œthe Supreme Court to appreciate that the question of who should rule Nigeria is not one to be decided by a perverse and narrow legalism, by the technicalities of the rules of evidence, practice and procedure and by considerations of expediency.â€ [Ben Nwabueze, Judicialism and Good Governance in Africa, 132 (2009)]
Itâ€™s rather tragic that the Supreme Court of Kenya â€“ or any court for that matter from anywhere â€“ should popularize such bent jurisprudence.
Kofi Adwensu, Advocate practicing in Accra:
Like many Ghanain members of the Bar I was eager to delve into the Kenyan Supreme Court’s decision in the Consolidated Presidential Petition that was delivered today.
Many lawyers across the country had put their photocopiers and Scanners ready, fingers poised on the ‘print’ button. After all with a star studded bench (literally and figuratively) that adjudicated the Presidential dispute in Kenya we in Ghana were certain that Raila Odinga vs Uhuru Kenyatta would provide fodder as precedent for use in our own Petition. I started with eagerness by page 50 I was confused. Was this a treatise?
Or a liturgy? Even with my basic knowledge of the Kenyan Constitution most of the findings flew in the face of Constitutionalism. From claiming its determination to steer clear of technicalities to then brandishing the sword of legalese at every turn, to interpreting the law on rejected votes in contravention of the provisions relating to tallying to giving an insipid summarization the judgment left a sour taste in one’s mouth.
Fuddled? No muddled is more like it. One may want to blame it on the short period of time that the Court had to deliver this decision but what about the advocates who spent sleepless nights preparing pleadings and evidence?
The whole judgment can be summarized in the incredulous finding that the Petitioner ‘should have pleaded his evidence in the Petition and not in submissions’. In the end after reading the judgment for the third time I gave up in despair.
Well, let us enthrall ourselves with our very own Supreme Court contest. I am sure that our Judges will unlike our brothers in the East give due regard and respect to our litigators chilvarly. The NPP’s presidential candidate, Nana Akufo-Addo’s prayer to the Supreme Court to annul 4,670,504 votes seems in context of the Kenyan case to be an impossible task. Oh, well. One can only try”.
Okiya Mtatah Okoiti -Activist- Nairobi
The Chief Justice Dr. Willy Mutunga should shut the hell up! When my Petition No. 311 of 2012, which challenged the corruption in the IEBC process of procuring a BVR solution for Kenya, was being frustrated in the High Court, I wrote to him mid last year but he took no action. To date he has not replied to my letter which I hand delivered to his office.
What his court has written here, on page 85-86 of their ruling, is bullshit. What does the Supreme Court mean by:
“It is, indeed, likely that the acquisition process was marked by competing interests involving impropriety or even criminality: and we recommend that this matter be entrusted to the relevant State agency, for further investigation and possible prosecution of suspects.”
Why didn’t the Chief Justice act when he had the chance to do so?
Bure Kabisa Chief Justice
Michela Wrong, Author and journalist
“It is, indeed, likely that the acquisition process was marked by competing interests involving impropriety or even criminality: and we recommend that this matter be entrusted to the relevant State agency, for further investigation and possible prosecution of suspects.” The latter part of the quote is in bold.
So, a high-profile procurement corruption case finally beckons in Kenya. Or perhaps, on second thoughts, no, it doesn’t. We’ve yet to see a single one, after all, ever being staged in Kenya’s post-independence history…..
Norman Magaya (LLB,LLM)- ODM Youth 2012 group chairman
I have had the benefit of reading the 113 page Supreme Court Judgment and in summary it states as follows:
1. That IEBC had the discretion to conduct vote tallying to the exclusion of party agents at Bomas and in so doing, its conduct did not prejudice any party.
2. That use of technology such us BVR, EVID and electronic transmission of results was optional and no law was broken by IEBC resorting to manual system.
3. That IEBC committed no breach of the law by having different registers since the same were used to take care of different groups.
4. That although the Green book was not provided for in the law, IEBC was justified to use it as a primary document of developing the voter register.
5. That although scrutiny of forms 34 & 36 revealed several discrepancies, no evidence was adduced to demonstrate that the discrepancies affected the final outcome.
My humble conclusion:
1. The supreme court has set a dangerous precedence to the extent that if the same is applied, no presidential election will ever be over turned
2. The Supreme Court has in a nutshell sanctioned continued use of manual system and duplicity of voter registers and as it is we will never know which one is the final voter register.
3. Finally we should never think of going to the Supreme Court ever again because no justice will be served.
Morris Kimuli, Advocate High Court Of Kenya
Dr Smokin Wanjala obtained his PhD from the University of Ghent in Belgium. Before then, he had been to the University of Columbia in the US, at the same time with the current Attorney-General Prof. Githu Muigai.
Most of Githu Muigai’s students will remember that Muigai always told fond stories regarding the academic and professional abilities of Smokin Wanjala. And we did not require this telling. Dr Wanjala was a very apt teacher. He taught land law, international law, International Humanitarian Law with great depth and insight.
I always looked forward to his lessons at Parklands Campus. Those who have reasoned with him will tell you that the man is a suave professional with a keen eye for detail. His remarkable sense of humour completes the picture of a man who can go deep enough with the most sophisticated, yet remain even with the simple. For his academic exploits abroad, he came back with a distinction.
Prof Wanjala has written books, booklets and articles which are published in a wide cross-section of platforms. It is no wonder then that this man beat competition to win an appointment to the Supreme Court of Kenya.
None of those who have known Smokin could begrudge the choice. He walked tall into the Supreme Court and it was my hope, and perhaps that of many who knew him, that it was yet another opportunity for him to show case the mettle he was made of.
During the hearing of the Presidential petition, he was a firm judge, admonishing even Ahmed Nassir and showing that litigation at the Supreme Court was no stuff for children. I really really wanted to read him in the Judgement. However, I have read through the Judgement of the Supreme Court and I cannot see the Towering Smokin!