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November 14, 2018

Let each judge read own verdict

Election, judgments and sausages.
Election, judgments and sausages.

“Laws are like sausages, it is better not to see them being made” is a quip regularly and mistakenly attributed to Otto von Bismarck, the famous Prussian statesman and architect of German unification. However, the Iron Chancellor, who died in 1898, was not associated with the quote till the 1930s. In fact it was the American lawyer-poet, John Godfrey Saxe, otherwise famous for publicising the ancient Indian parable about Blind Men of Hindustan and The Elephant, who more inelegantly said: "Laws, like sausages, cease to inspire respect in proportion as we know how they are made."

As I write this, oral judgments have just been completed at the Supreme Court hearing of Raila Odinga and Kalonzo Musyoka’s petition against the reelection of President Uhuru Kenyatta. It has been four days of riveting presentation and argument and, often, comedy, as one side prosecuted its case and the other tried to rubbish it. The main bone of contention appears be about ends and means: whether the way the election was carried out matters or we should only concern ourselves with whether the results declared matched how the electors had voted.

In a sense, it could be said that Uhuru and the IEBC appear to prefer the Bismarckian formulation that it's better to focus on the final product and not peer too closely at the inner workings of the electoral system. After all, they argue, the whole point of an election is to express the sovereign will of the voters, and so a simple check of the forms prepared at the polling stations (where all the voting and counting happened) should suffice.

The petitioners, on the other hand, are more in line with Saxe. They say the more we actually learn about how the election was run, the less reason we will have to respect the result. They point out what they say are numerous irregularities and outright illegalities in the conduct of the poll, which they hold undermine any confidence, not just in the veracity of the result that was announced, but also in the authenticity of whatever documents the IEBC might produce to support it.

I have been somewhat mystified by the way in which these arguments were framed. Throughout, voters have been portrayed as passive actors upon whom elections are visited. The lawyers in the room, including the Attorney General, behaved very like the blind men of Hindustan trying to define the elephant that is the people’s sovereignty. There seemed little recognition that sovereignty does not start and end with the casting of ballots and determining of who becomes President. Citizens do not become sovereign when they transmogrify into voters. They are always sovereign in a democracy.

Further, as I have written before, voting in an election is not - as one of the lawyers unfortunately declared - the foundation of democracy. Participation by and accountability to the citizenry throughout the term of government are. Thus, if elections are about the sovereignty of the voter, as another averred, then constitutions are about that of the citizen. And the entire corpus of law, the foundation of which should be the constitution and citizen participation in governance, is an exercise in sovereignty.

Protecting the expression of sovereignty then entails more than just ensuring the correct result was announced. It also means ensuring that the process prescribed by the law was adhered to. It is not a choice between respecting one or the other.

Now, after dominating TV screens for nearly a week, the process of adjudicating the petition moves into the shadows as the judges retire to consider their verdict. Four years ago, after a similar week of TV drama, they reappeared with a sausage of a judgment, with only a short summary of the decisions delivered in open court but eventually revealed to consist of a messy and unhealthy cocktail of poorly reasoned arguments.

It is proper that the judges should concern themselves with burdens and standards of proof and with the attendant requirements of who should prove what to which degree of satisfaction. In exercising its delegated sovereignty, the court is subject to the constraints of evidence. What is true and what can be proven not necessarily being the same thing, courts only concern themselves with the latter.

The upshot of this is that the court cannot tell us whether the election was stolen, just whether Raila and Kalonzo can prove it. That means, regardless of what the courts rule, it will still be up to each citizen to decide for himself or herself whether they believe the election was credible and whether the IEBC and other arms of government have properly carried out the mandates given to them.

Still, this does not mean the Supreme Court’s judgment is irrelevant or unimportant. It will decide the legal validity, if not exactly the legitimacy, of the poll and the government it births. It is to be hoped that the judges will each prepare individual judgments, clearly detailing the reasons for the conclusions they have come to and that each will get to read his or her judgment in open court.

The truth is, elections and court judgments should be nothing like sausages. The more one knows how they were made, the more they should command respect and be savoured.

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