Why presidential petition might be CJ’s last big task

Chief Justice Willy Mutunga. [Photo: File/Standard]

By Wahome Thuku

Nairobi, Kenya: Chief Justice Willy Mutunga might not preside over another presidential election petition.

If everything follows the natural course of events, Dr Mutunga will have just retired as a judge when the next General Election is held, having attained the constitutional retirement age of 70 years.

Mutunga was born on June 16, 1947 and will be weeks into his retirement when the elections will be held on the second Tuesday of August 2017 as per the Constitution.

Presiding the 2013 petition and witnessing the subsequent swearing in of Uhuru Kenyatta as the fourth President of Kenya may, therefore, go into Mutunga’s profile as the most significant undertaking as head of the Judiciary and president of the Supreme Court.

Yet as controversial as the determination of that petition may be, it remains one of the highlights of the reforms that have taken place in the Judiciary since the promulgation of the new Constitution in August 2010 and more particularly the coming in of Dr Mutunga in June 2011.

The filing, hearing and determination of three in one petitions demystified the superiority in which judges were regarded as holding the presidency.

Since it was established, the Supreme Court was designed for one major task that of dealing with any dispute arising from the presidential election then expected to take place in 2012.

This high expectation was based on the bloody aftermath of the 2007 elections in which over 1,300 people were killed, over 500,000 others displaced and property worth millions of shillings destroyed in violence that followed the disputed re-election of President Kibaki, now retired.

Matiba’s wife

Since independence Kenya had only witnessed two presidential election petitions both challenging the re-election of former President Moi.

The first was in 1993 and was filed by Ford Asili candidate Kenneth Matiba who lost to Moi in the first multiparty elections in 1992. It was later dismissed by the Court of Appeal on April 22, 1994 when it was.The case was dismissed on single reason that it had been signed by Matiba’s wife to whom he had given legal Power of Attorney to sign all his official documents. The court ruled that the petition should have been signed by Matiba himself in accordance with election petition rules, despite the fact that he could not physically do it, having suffered stroke in detention that left him paralysed.

The second petition was filed in 1997 by Kibaki who had also lost to Moi. The case was dismissed by three High Court judges on May 21, 1999 on grounds Kibaki had not served Moi with the petition papers in person. This was despite the fact that throughout the hearing, Moi had already been sworn back to office and Kibaki’s lawyers could not reach him with the papers.

The court also dismissed an application by Kibaki, then official Opposition leader in Parliament, to cross examine Moi on his claims he had never been served with the papers.

The two petitions have since informed, in a great way, the radical reforms that were adopted in hearing and determining the 2013 presidential election petitions.

They also influenced the key reforms on the Judiciary during the debate on and enactment of the new Constitution.

Newspaper

The Constitution now provides the petitions heard and determined within 14 days during which the swearing in of the president-elect will have been put on hold. This ensures the president-elect does not use the office to frustrate the case and he or she is held in the same status with the petitioner.

Service of petition papers can either be done electronically, physically or through publication on a national newspaper so that the question of failing to reach the president-elect doesn’t arise.The Constitution has ensured the presidential petitions are started and concluded in the Supreme Court with no provision for appeal.

Some of the rules that governed proceedings in the petition hearings were gazetted by the Judiciary just before the polls.

In its determination, the Judiciary, through the Supreme Court, had cleared several hurdles and controversies on the future conduct of presidential elections including the question as to whether rejected votes should be included in the final tally of results.

Though Mutunga may never sit to hear another such petition, the work done by the six-judge Bench in determining the 2013 petition will be key in moving the country forward in dealing with such disputes in future.