US President Donald Trump has learned the hard way the power of an independent judiciary, which had stopped him from implementing his ill-conceived and unconstitutional ban on Muslim travel to the US. To be sure, Trump was only handed “victory” by the Supreme Court, which only revived parts of a travel ban on people from six Muslim-majority countries that he said is needed for national security but that opponents decry as discriminatory.
But the lower courts had completely blocked key parts of a March 6 executive order that Trump had said was needed to prevent terror attacks.
This is what is meant by an independent judiciary — a court system, whose decisions and actions are soundly grounded on facts and law and not doing things at the whim of the executive, something that has plagued our nation since Independence. Put another way, an independent judiciary is where litigants can go to court knowing full well in close cases, where an arbiter of facts could rightly rule one way or another, that the decision an arbiter arrives at is one that the losing side can accept as just and fair under the circumstances, and not one arbitrarily decided for nefarious reasons, not the least of which is corruption or doing the bidding of the appointing authority.
With the promulgation of the 2010 Constitution a new Supreme Court was created to lead in establishing an independent judiciary, but we know how former Chief Justice Willy Mutunga let us down in presiding over an independent judiciary, especially in the manner he handled the contested 2013 General Election. Chief Justice David Maraga has now taken over the leadership of the judiciary. But the question is, will he advance judicial independence to the satisfaction of all, or will he also succumb to the ills that have bedevilled our courts from the lowest to the highest?
That question will be put to the test after the upcoming August 8 election, where there’s no doubt Jubilee is once again busy scheming how to once again rig to cling to power.
There are two things that can save us from another rigged election, with its inevitable consequences and these are; an overwhelming rejection of Jubilee as was the case in 2002, when the country overwhelmingly rejected President Daniel Moi and his project Uhuru Kenyatta and, or two — if the voter turnout is not as overwhelming for NASA, giving Jubilee a chance to rig — for the Chief Justice and his fellow justices saying no to any rigging, by granting a petition to stop a rigged -in President Uhuru from clinging to power if, in fact, he tries to manipulate the result, and there’s evidence of that proven in the petition.
Of the two choices, an overwhelming turnout by voters in favour of saying enough is enough with yet another failed government will be the better alternative. Should that not happen, and Jubilee tries to rig, there’s no do doubt NASA will file a petition challenging the result, and it would be then upto Chief Justice David Maraga and his colleagues at the Supreme Court to prove the power of an independent judiciary, by rendering a decision consistent with the evidence before the court and the law.
One of the ominous signs we are headed into yet another rigged election with a court that is unable to justly resolve the outcome is Maraga’s recent roadside declaration, among other things, that the court’s hands are tied with the strict timelines provided in the Constitution.
This was the excuse former CJ Mutunga gave in rejecting Raila and AfriCOG’s petitions challenging the declaration of Uhuru as winner of the 2013 election.
The court can and must do better in balancing the dictates of judicial fairness and justice, and doing whatever is necessary not to make the strict timelines an excuse to deny giving effect to the will of the voters as expressed at the polls, if Jubilee were to try and rig the election again.
Anything else would be unbecoming with predictable outcome to those adversely affected.
Omwenga is a legal expert and political commentator in the United States