‘Learned friends’ love demeaning lay views. Their dismissive posturing is a strategy to suppress freedom of expression. But certain legal outcomes make it necessary to decry the dearth of public interest in some decisions of the Supreme Court.
The top court is under scrutiny for questionable arbitration of 2017 electoral disputes. The confusion, and abuse of its own precedent, leave the public asking, where is justice?
The confusion has nothing to do with legal literacy. It has to do with abuse of context. Why, for example, should six justices of the Supreme Court nullify decisions of High Court and Court of Appeal judges with such bile? Is it that ‘junior judges’ cannot make informed, legal decisions?
Disputes are evaluated for their legal soundness before they land in court. This is done by lawyers, who went to the same schools, sometimes with like experience. It is why courts have pre-hearing conferences.
It is on this account that sometimes the High Court and the Court of Appeal make unanimous decisions. But when the Supreme Court dismisses judgments of the lower courts on account of single issues, lay consumers read compromises.
The Supreme Court is currently the recipient of lay barbs and butts. ‘Is justice on sale?’ is trending online, across villages, bars and restaurants. You didn’t go to law school should not be the defence. Old Boy Aziz, did we see these people at the Maseno School? School of Journalism? Graduate School of Journalism, University of Western Ontario, Canada?
Opinions are like brains — everyone has them. But opinions on the Supreme Court decisions on the Wajir and Homa Bay electoral disputes need scrutiny.
The decision on the Wajir county governor petition last week has cast aspersions on the integrity of the Supreme Court. The earlier unanimous decision of the Supreme Court judges on the Homa Bay governor election raised similar suspicions.
These suspicions cannot be papered over because they ridicule the Supreme Court. But the supremacy should not be a ticket for legal gerrymandering.
The Supreme Court based its judgment in the Homa Bay case on the supremacy of figures. It ignored the process. The Supreme Court judges argued the High Court and the Court of Appeal ignored findings of vote scrutiny, which the lower court ordered. They blamed Homa Bay High Court judge Joseph Karanja, and Court of Appeal justices Philip Waki, Otieno Odek and Fatuma Sichale for a ‘fatal legal mistake’.
But the dispute was not registered on account of the results of a High Court-ordered scrutiny only. There was a context to the petition. These were the same ‘illegalities and irregularities’ the Supreme Court used to nullify the August 8, 2017, presidential election.
In the Homa Bay case, the Supreme Court upheld the supremacy of votes garnered, without considering the context. Math examiners do not mark the right answers — they consider the integrity of the process.
Similarly, the dispute in the Wajir case was the academic eligibility of the incumbent governor. Lower courts returned a verdict of ineligibility. So did two Supreme Court judges — Chief Justice David Maraga and the fiercely independent Justice Isaac Lenaola.
But four judges found a straw to rationalise a contrary decision. The four maintained that since the incumbent passed the IEBC arbitration, he is therefore eligible.
Many candidates ran for office in the 2017 election in contravention of the integrity threshold of the Constitution. That mistake cannot stop a conscientious Bench from making a contrary decision.
The trending paraphrase on the Supreme Court verdict came from one ‘Eugene’, an online regular: “We find the Wajir Governor’s degree suspect. It cannot be verified. However, we find his election valid and in accordance with the Constitution. Though one is supposed to have a degree to be governor, the Governor has always behaved and conducted himself like a graduate. This court in its immense wisdom finds and holds that a man does not have to produce actual degree papers provided he behaves and performs like one who has them. Election upheld!”
Really?