By Wahome Thuku
As Kenya strides to elections history has thrust onto the shoulders of the Judiciary the burden of arbitrating on legal suits with potential of drastically changing the shape of politics.
Most of the cases awaiting decisions have a direct bearing on the new election rules, 96 MPs deemed to have defected already, academic ceiling for elective posts, the 80 new constituencies, and the vetting organ that is the Ethics and Anti-Corruption Commission whose top three appointees a court has blocked from being sworn-in.
The Judiciary under Chief Justice Willy Mutunga is literally staring at its major acid test since it was reformed under the new Constitution. Even more critically, the courts are increasingly becoming the arbiter of disagreements among politicians in Parliament and in political parties.
Most of the cases also have a direct bearing on the elections, including when it should be held, whether losing presidential candidates could be nominated, and if the 80 new constituencies are constitutional. Another seeks to block the Government from withdrawing Sh424 billion, part of which will go to Independent Electoral and Boundaries Commission’s election budget, without the requisite Appropriation Bill.
In every way the court today, through its retinue of judicial staff, hold the key to critical decisions that could determine virtually every aspect of the General Election.
The speedy conclusion of the cases, and the fairness of the judgements have turned the national radar onto the Judiciary. Until Dr Mutunga took, this institution suffered credibility crisis. The Executive, power brokers, and business interests often saw it as susceptible to manipulation.
Close to a dozen cases await determination by the High Court and the Court of Appeal, all of them with potential to alter the planning of elections. President Kibaki cited five of the cases on Monday as the reason for rejecting multiple amendments by MPs.
The litany of cases has also put the three arms of government – Executive, Legislature, and Judiciary – on another collision path in so far as it concerns the question which of them should have the final say on some of the burning issues.
Parliament chose to legislate on the issues that were pending in court when it made several amendments to the Political Parties Act, and Elections Act, prompting President Kibaki’s intervention.
Separation of powers