By Maina Kiai
The Supreme Court spoke with one voice in deciding that the March 4 election results stand. As we wait for reasons for that decision, let me wish Uhuru Kenyatta, William Ruto and their incoming regime the best, for Kenya needs them to succeed so we can expand our democracy, increase accountability and develop.
They put together a good campaign, turning adversity of the ICC into advantage and somehow convincing Kenyans that despite their establishment, status quo credentials and background, they were the underdogs. Credit this to the British BTP public relations wizards.
But this is not about Mr Kenyatta and Mr Ruto. It is about some issues arising from the monumental decisions of the Supreme Court.
We will know in a week why the Court ruled as it did, but perhaps the submissions urging judicial restraint were convincing. May be, they agreed that the petitions were more politics than law.
But the Mutunga Court proved to be retrogressively activist in reversing gains in the new Constitution by vitiating two key, plainly written Articles of the Constitution. They had no judicial restraint here, taking us back to the standards of the old order that we discarded.
First was the ruling that essentially ousted Article 159 (2) (d) which directed courts to administer justice “without undue regard to procedural technicalities,” when it rejected analysis of 122 constituency tallies based on information that the IEBC had presented in response to Mr Odinga’s petition, reasoning that it was not presented procedurally or on time.
This was reminiscent of the rulings in the 1992 and 1997 petitions by Kenneth Matiba and Mwai Kibaki respectively that were thrown out on technical grounds.
Second was the rejection of the plain meaning of the words “votes cast” in Article 138 (4) (a) in determining whether a candidate had attained the 50 per cent plus one threshold.
The old constitution used the words “valid votes cast” rather than “votes cast” in determining threshold and three members of the Committee of Experts confirmed to me that they made a deliberate decision in dropping “valid” when drafting our Constitution.
I’m especially looking forward to reading how the Court deals with Isaak Hassan’s own submissions, on record, where he delves into an analysis of the character and intentions of some candidates.
Issak Hassan submits in Paragraph 9: “The petitioner is good in making other scapegoats for his failures and electoral defeats. He is a man used to ruin others as a sacrifice for his failures. It is high time we called a spade a spade as we deconstruct the issues that define the petitioner’s well-known pattern of refusing to concede defeats.”
Then in Paragraph 14: “It will be a tragedy if this court should validate that self centred, narcissistic and egocentric philosophy espoused by the petitioner.”
Mr Hassan may well be right in his assessment of Mr Odinga but that is neither here nor there. This could be validly and legitimately submitted by any other contestant or Kenyan for that matter.
But the IEBC chair is no ordinary citizen who can publicise his views on candidates. He was not a contestant in the elections. He can have his views on candidates and people but he must never utter them publicly. As the official responsible for conducting impartial polls, the constitution requires that he be seen to be unbiased.
How long has he held these views? What weight did the Court give to these submissions in view of the constitutional requirement of impartiality? Can an election conducted by a person holding such views be legitimate (as opposed to legal)?
Remember, Isaak Hassan is not only the Chair of IEBC: he was also the sole returning officer for the presidential election.
Maina Kiai
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