By Wahome Thuku
MY COLLEAGUES will agree with me on this. In terms of assessing the facts and applying the law, a presidential election petition is one of the easiest cases for a judge to determine. More so when its handled by 7 judges.
Its far less complicated than determining say a complex commercial dispute especially one of continental nature like marine disputes or a cobweb of a case like Goldenberg scandal or even some mutating matrimonial disputes.
Even in 2013 the Supreme Court pointed out that the petition before it was not a complex case, but what gives it so much prominence and sense of complexity are the parties involved (President and deputy), the nature of public interest involved, publicity, the issues at hand and generally the tribal/party emotions and tension it raises in the country in a period of 14 days. All that makes a presidential petition standout as big, but in any lawyer’s mind, they know dissecting its facts and applying the law is quite simple.
Forget the court drama. The petition sits on mainly three substantive sources of law – the constitution of Kenya 2010, the Elections Act, The Supreme Court Act and then the case law (previously determined cases). The rest is politics na kizungu mingi and deciding a political case also depends on the political dispensation of the judge.
The 2013 petition was more “broader” in nature than what was filed last night by NASA (even before I have seen it). In 2013, there were three petitions all of which were collapsed into one and their issues dealt with together. One was filed by Raila, another by Dennis Itumbi and Moses Kuria and another by Africog. There were even two all three applications for amicus.
This time we have only one petition of Raila Odinga (I may be wrong), and that makes things simpler.
From last night, judges will be looking at the 25,000+ documents filed and familiarizing with them for a week before meeting the parties.
In 2013, the 6 judges shared the issues in the petition amongst themselves. One was to look at the facts raised on BVR technology, another on voters register, another on Forms, ….etc. Then they would conference and discuss the issues and what each judge had concluded. That is what CJ Mutunga told us.
I would expect them to do exactly the same now, so that Judge Lenaola will be looking at the facts on hacking of server, Wanjala on Forms 34 while Njoki Ndung’u will be dealing with Chris Msando speech and death and how it pre-exposed the rigging. Then they “consolidate” their minds and write a judgement, or each to write his/hers.
MOST interesting, when the judges meet the parties next week, all the contested issues in the 25k + papers will be framed and reduced to about 5 or 6 or even 10 issues and that will be the case for determination. The rest will be like factory waste.
Last time, the court was accused of making a decision in 5 minutes though two weeks later they read a detailed judgement. Even this time, the ruling will still be in one paragraph read in 3 minutes.
But I can assure you that just by reading the documents from NASA and IEBC and Uhuru and Ruto, the judges will have already decided the case in their minds even by Friday this week. Its that simple. And that’s all.