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How recent decisions affirm Judiciary's independence

Supreme Court threw out a petition by Raila challenging Ruto's victory over rigging allegations.

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by The Star

News06 September 2022 - 13:43
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In Summary


•  Analysts say the validation of William Ruto's victory is one of the landmark decisions that has demonstrated the Judiciary's independence.

• “The ruling does not only affirm the strides in the journey towards an independent judiciary but also the critical role courts play in the growth of democracy,” King'ara said.

Supreme Court seven bench judges led by Chief Justice Martha Koome

At least three most consequential rulings by the courts since 2017 have asserted the independence of the Judiciary after decades of claims of state capture.

They include the historic nullification of President Uhuru Kenyatta's reelection in 2017, the rejection of the Building Bridges Initiative and Monday's validation of last month's presidential election.

Analysts say the validation of William Ruto's victory is one of the landmark decisions that have demonstrated the Judiciary's independence.

While some observers were worried that the decision could lead to political chaos, the region's biggest economy that has a history of disputed elections and political violence has remained calm.

“The ruling does not only affirm the strides made in the journey towards an independent Judiciary but also the critical role courts play in the growth of democracy,” human rights activist Wanjiku King'ara said.

The Supreme Court, the country's topmost tribunal, threw out a petition by veteran opposition leader Raila Odinga who had challenged Ruto's victory over rigging allegations.

President Uhuru censured the Supreme Court questioning their fidelity to their own decisions that previously, he said, emphasised on "the process rather than the numbers."

In the summary judgement of the unanimous decision read by Chief Justice Martha Koome, the court lambasted allegations made by Raila's legal team as “just another red herring” and “hearsay.”

Raila, who was on his fifth bid for the presidency, had personally delivered boxes of evidence to court following Ruto’s narrow victory in the August 9 election.

City lawyer Okeng'o Nyambane said recent decisions of the Supreme Court as well as other courts have cemented Kenya's place as a beckon of democracy in the region.

“The ruling was bold and scathing as well. It was the best Kenyans hoped for under the leadership of Chief Justice Martha Koome.

“Our Judiciary has come of age, other countries will now be looking up to Kenya as an authority in judicial matters,” he told the Star.

The ruling had been billed as big test for the independence of the judiciary at a time when outgoing President Uhuru Kenyatta was aggressively backing Raila against his own deputy.

The decision came hot on the heels of another ruling that slammed brakes on the Building Bridges initiative, a political pet project of President Uhuru.

The late March BBI ruling hammered the last nail on President Uhuru's political scheme to radically alter the country's government architecture.

The decision was hailed as another sign of judicial independence especially after the High Court and the Court of Appeal both annulled BBI.

Political analyst and university don Joseph Okello said the BBI ruling coupled with the presidential petition have given true hope that the country's judiciary is truly independent.

“The pattern paints a picture of consistence and development of the country's jurisprudence, strong independent institutions including the Judiciary breath life to democracy,” he said.

Many admit that following the promulgation of the 2010 constitution, the country has had a paradigm shift in terms of electoral disputes.

Previously, the courts were largely seen as a nonviable avenue of justice because judges were perceived as part of the Executive as they were appointed by the president.

“The level of confidence we see in the court is due to the constitutional transformation that created an independent judiciary, that is also financially and functionally independent,” Demas Kiprono wrote in the Standard.

This year's presidential petition was the fifth since the advent of multi-party democracy in 1992 but the second to fall after the 2010 Constitution.

While the Supreme Court had in 2013 rejected Raila's petition challenging President Uhuru's victory, it was the 2017's nullification of presidential election that heralded a new dawn.

In September 2017, the country’s Supreme Court, under a challenge from Raila, then-leader of the opposition, annulled the presidential election and called for a new election to be held within 60 days.

The Supreme Court ruling was “an unprecedented move,” particularly considering that judicial independence is Kenya had been seen as a rarity.

Analysts then said the landmark ruling, the first in Kenya, marked a watershed in the country and set a unique precedent for the continent.

Unlike this year's unanimous decision, in 2017 the six-judge bench ruled 4-2 in favour of Raila's petition, who claimed the electronic voting results were hacked and manipulated in favour of Uhuru.

The judges had said: “The election commission failed, neglected or refused to conduct the presidential election in a manner consistent with the dictates of the constitution.”

However, Raila boycotted the rerun election in October 2017, “claiming that he and his party lacked confidence in the credibility of the process,” which led to Kenyatta capturing 98 per cent of the vote.

The first presidential petition in 1992 was fell on a technicality with the court ruling that Kenneth Matiba’s did not sign the petition.

His wife had signed the petition on Matiba's behalf.

(Edited by Bilha Makokha)

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