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Sunday, August 20, 2017

Will the Supreme Court redeem itself if NASA petitions?

Ask any American who was of age in 2000 about what they remember most about that year.

Nearly all of them will tell you how depressing it was for much of the country, when Al Gore and his nearly 51 million supporters were told their votes didn’t count when the United States Supreme Court stopped counting of votes in the state of Florida, effectively gifting the win to George W Bush, the 43rd President of America.

In Kenya, that honour has to go to the dismissal of Raila Odingas petition in 2013 by the Supreme Court, probably the worst decision it could ever make. It is looking more and more likely that Raila is headed back to the Supreme Court, given that as of Tuesday evening, no winner in the presidential race had been declared, and the trend in tallying and announcing the numbers very much mirrors what happened in 2013. According to Raila, the numbers being announced and showing President Uhuru Kenyatta with a significant lead are cooked because they are not backed by Forms 34A and B as required under the law.

With no resolution in sight, it’s certainly likely Raila and NASA will end up at the Supreme Court, either to seek an injunction preventing IEBC from announcing the presidential results or demanding their nullification and a repeat.

That would be a monumental, and yet again historic decision, for it would be only the second time in this decade a petition challenging the presidential election and outcome since the Constitution was promulgated in 2010.

Chief Justice Willy Mutunga, who presided over the first challenge, is no longer the president of the court and ditto for a number of justices who have since left.

Chief Justice David Maraga now finds himself likely with a hot petition on his hands along with his fellow justices, including Justice Isaac Lenaola, who many believe brings to the court exemplary jurisprudential insight. Coupled with Maraga’s, the two could formidably team up to bring nearly the entire court on the side of doing the right thing. Were Raila to file a petition to challenge the 2017 presidential election, the Court should and ought to keep the following in mind:

First, the case would be a chance to redeem its supremacy in as far as the law goes. This is because the shallowness and lack of depth in reasoning in the 2013 petition led many to believe the Court was not rendering a legal, but a political, decision, which is counterintuitive and defeats the whole purpose of having the Court to begin with — to function not only as an arbiter of disputes for which it has jurisdiction besides its appellate functions, but the Court is there to check particularly for mischief in the other branches of government that are unlawful or otherwise contravene the Constitution. Second, the rule of law means, among other things, that no “written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice that transcend human legal systems.”

If it’s true, and Raila can present evidence that the IEBC announced results not based on, or in contradiction to, what’s recorded in Forms 34A and B, the Supreme Court should on that fact alone declare the election null and void, and order a repeat under this principle. In so doing, the Supreme Court will reestablish its authority under the Constitution, and correct the trajectory of Kenyan politics.

Third, nothing can be as sacrosanct in a civilised political society than the right to vote. It cannot be the case that Kenyans wake up at 2 or 3am, stand in line for hours and vote only to have someone sitting in some office in Nairobi simply cooking up numbers to determine who’s in sworn as President.

That’s just wrong and the Court should say enough of this and forever change the culture. Doing anything else would be to be complicit in such injustice, which would be an irony, indeed.

Omwenga is a legal expert and political commentator in the United States

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