US President Donald Trump shocked the world when he won in one of the most bizzare presidential elections in America. He lost the popular vote by almost 2.9 million but was declared the winner by virtue of having won the majority of the Electoral College votes.
The drafters of the US Constitution created the Electoral College system to guard against “cabal, corruption, intrigue, and faction,” which, to some, degree it has.
The proof of the ingenuity of the system is in the fact that only in four instances in the country’s more than 230-year history has the President been elected not having won the popular vote. They also created a checks and balances system such that no single branch of government among the three could overwhelm the others and ride roughshod over the country’s affairs.
President Trump is finding this out first-hand as the courts promptly tossed out his hurriedly issued and unconstitutional executive order banning Muslims from certain countries from entering the US (he claims the ban was not against Muslims but the courts took the view, if it looks like a duck, quacks like a duck and swims like a duck, it’s probably a duck, except in this case, the court said, it was a duck).
Our Constitution is not 230 years old. It’s only only on its seventh year, if you put aside what we had before as not really a constitution, but a manifesto for an efficient dictatorship.
Be that as it may, the drafters of our Constitution did borrow a page from the American Constitution and established our own system of checks and balances. Built underneath that system is, at least on paper, an independent judiciary.
We all recall the fanfare ushering in the new Constitution in 2010 as if we had finally arrived as a country. Unfortunately, that spirit of oneness and purpose was short-lived as we found out in 2013 that the ugly old was with us in the form of rigged elections and a compliant judiciary that turned a blind eye on the glaring evidence of rigging presented before it.
Correction; a compliant Supreme Court which turned a blind eye on the glaring evidence of rigging presented to it only for its then Chief Justice and President, Dr Willy Mutunga, to seal the Court’s fate as the most inconsequential court in as far as the preservation of vote integrity goes, and making laughable the notion of an independent judiciary.
But all is not lost. Mutunga has since left the Bench with hardly any legacy to speak of other than the foregoing and he has been replaced by David Maraga.
With the addition of Lady Justice Philomena Mwilu and Justice Isaac Lenaola as Deputy Chief Justice and Supreme Court judge respectively, one can say we have had a reset of the court, taking us back to just after August 2010, when we prematurely celebrated the liberation of our judiciary from the chokehold she had suffered all those years since Independence in the hands of the President.
It’s a fact that other than in 2002, there has never been an election in Kenya where there was no rigging or outright theft at the presidential level.
Indeed, in all of those elections, we had an impotent judiciary doing the bidding of the riggers but, with this reset, the men and women serving in our highest court of the land may yet again be called upon to rise to the occasion and deliver justice for the country and it’s our collective prayer they will not fail us as their predecessors did.
In other words, as the courts in the US told Trump he can’t tramp on people’s rights at will, so, too, should ours tell President Uhuru Kenyatta and his Jubilee administration loud and clear if they’re to be worth the honour bestowed upon each of them and collectively.
Only then shall we be a free nation and every indication is this is already in the making, namely, saying enough is enough.
Samuel Omwenga is a legal analyst and political commentator in the United States
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