Supreme Court should punish anyone involved in malpractices

Supreme Court Judges, from left, Isaac Lenaola, Smokin Wanjala, Philomena Mwilu, Mohamed Ibrahim, Njoki Ndungu and William Ouko. [Collins Kweyu, Standard] When architects of the 2010 Constitution made it possible to petition presidential election results at the Supreme Court, then, it appeared to be a stop-gap measure in dealing with the periodic post-election violence. Guided by the 2007 post-election violence, they provided for article 140 that mandated the top court to hear and determine any petition challenging the election of a president-elect, if questions arise on the process and results used. Instructively, the 2007 post-election violence was made worse by the fact that there was no available legal redress mechanism for the disputed results. However, an analysis on the judgments delivered by the court, on the three disputed presidential elections, reveal that it has, over and above advancing political stability, strengthened our democracy. Before validating that claim, allow me to state as follows on the mandate of the Supreme Court on presidential elections. The Supreme Court, world over, is not a court of law. This is a political court that deals with highly contentious political issues that require to be made legitimate legally. The High Court, like in Kenya, is the constitutional court wired to interpret the text and spirit of the law. This explains the flexible timelines by the court in dealing with heavy constitutional questions. On the other hand, the Supreme Court, according to our Constitution, only required 14 days to determine a presidential election petition. Now, logically, this impossible. Therefore, one might be forgiven to wonder whether it was an oversight, on the side of the architects, to give the Supreme Court such short time to dispense justice. Here are two reasons as to why it wasn't an oversight. First, the architects of the Constitution, in giving this strict timeline, must have been alive to the fact that a longer timeline might heighten the political temperatures. Second, the Constitution is clear on when strict timelines must be observed. Other than the hearing and determination of a presidential petition, the Constitution gives timelines for, inter alia, the swearing-in of the president-elect, hearing and determination of other election petitions, conducting a referendum and passing bills into laws. As such, by limiting the Supreme Court to hear and determine a presidential election petition in 14 days, the architects of the Constitution were clear that the mandate of the Supreme Court in the presidential petition, unlike in other election petitions, is limited to a panoramic view of the election and the politics around it. Needless to mention that the Supreme Court, like an octopus, can move in any direction suo moto "on its own motion". Supreme Court Building, Nairobi. [File, Standard] For starters, this means the Supreme Court, although it looks at the law as it is, is not constrained to act within the existing laws. It can thus overrule itself and or give a fresh interpretation to a given law. Be that as it may, the Supreme Court has without a doubt improved our democracy in their judgments. First, constitutional institutions have been strengthened and their roles clearly spelt out. Take for instance Independent Electoral and Boundaries Commission (IEBC). The IEBC has greatly improved the conduct of elections thanks to the Supreme Court. Slowly, Kenya will win the war against electoral malpractices. What's left of the Supreme Court, like in the 2017 presidential petition, is to punish anyone involved in election malpractices. If only the Chief Justice David Maraga court would have punished those who bungled the 2017 elections, according to the findings of the court, then IEBC officers might have taken their role more seriously in this election. Failure to punish the candidates and IEBC officials involved in election malpractices only emboldens them. And this explains why we are back at the court. Second, the text and spirit of the law have been interpreted in a way that gives more life to the Constitution and make it, highly, relevant. For instance, the interpretation and application of Chapter Six has always been an issue of determination during presidential petitions. And as petitions come and go, Chapter Six continues getting sharpened. But more importantly, the judgments by the Supreme Court have, over and above everything, demonstrated the importance of having a democratic citizenry. In saving democracy from self-cannibalism, it takes tough, resilient and democratic citizens to always pursue justice though heavens fall. The resilience and determination shown by Raila Odinga and Martha Karua, paint an elaborate picture of the kind of citizen the Supreme Court has always hailed. That they have resorted to use constitutional means to not only pursue justice but also better our laws, we owe them a great deal of gratitude. Fiat Justitia ruat caelum. May justice prevail though the heavens fall.

Supreme Court should punish anyone involved in malpractices

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