By PRAVIN BOWRY
The process of the just concluded hearing of the first ever full presidential election petition by the Supreme Court was a timely break from convention. As a result of the historical case, a reasoned prediction is that the justice system will change for the better.
Minimising delay, emphasis on efficiency, time management, respect for media and litigants, diligence and hard work of judges and the paralegal staff are attributes, which must be lauded.
It was gratifying to note that the six judges were literally burning the midnight oil during the judicial ‘Easter Vacation’ and during the weekend perhaps against the law which lays down the business hours of the courts.
What has emerged is a Kenyan style of justice, by Kenyans and a strong foundation has been laid for futuristic judicial performance.
The legal fraternity in the Commonwealth was surprised that an even number of six judges dealt with the petition. In appellate courts all over the world it is a tradition to have a Bench comprising uneven number of judges.
The absence of holder of the office of the Deputy Chief Justice did not deter The Chief Justice from taking the bold step of getting on with all the six Supreme Court judges. Additionally, the CJ subtly surmounted the grave misguided weakness of many Kenyans to giving every Kenyan judge or magistrate a tribal tag when dispensing justice.
The barring of the Law Society and the Katiba Institute, giving audience to the Attorney General as a friend of the Court, consolidation of the petitions and order by the court without being provoked by the warring parties for scrutiny of IEBC records and the tallying process all was based on expediting the process within the law and all sideshows of judicial performance were averted.
It was most surprising that the matter was disposed of without calling a single witness, all decisions being based on affidavit evidence.
The fact that witnesses were not called due to time constraints will be of concern to analysts to dilute the quantum of the decision.
Cross-examination is after all regarded as the most effective of all means for extracting truth and exposing falsehood.
A pertinent question which arises in the wake of the Supreme Court performance is whether the main stream judiciary can replicate this efficiency and methodology. .
Inevitably, we must cast an eye on our many historical judicial or quasi-judicial debacles. J.M. Kariuki death probe, half-baked Ouko Commission, legally impotent Goldenberg Commission, the Artur Brothers Inquiry in retrospect could have been handled differently with better results and far more economically if the style of the Supreme Court were in place in the bygone era.
In times to come, weighty and grave issues requiring judicial intervention will not, and should not be given months and years and billions of shillings to perform (or is it not to perform?).
Hopefully, the Attorney General will review the performance by the Supreme Court and put into practice the lessons learnt.
Many antiquated laws need to be amended and brought to live up to the expectations of the constitution, technology and even expectations of many suffering Kenyans engulfed in the trap of the judiciary.
Easter, Summer and Xmas vacations are no longer relevant. Week-end courts are a necessity. Evidential rules need to be urgently aligned to all the electronic advancements.
Only last week a High Court judge observed the performance of the judiciary in a constitutional matter was a disgrace to the judicial system. Courts all over the country are still under-performing.
The Court of Appeal has an unbelievable backlog with judgments delayed repeatedly. How will the death row convict who has had to wait for his appeal to be heard for ten long years taken the decision of the Supreme Court vis-à-vis the expedited election petition?
Ways and means to expedite justice in particular in criminal cases must be devised even at the expense of breaking away from conventional thinking. Are accused getting preferential rights compared to the victims? Should the onus of proof be shifted to the accused? Should prosecution prove facts not denied by the accused without calling witnesses e.g. the age of the complainant or nature of injury?
The Chief Justice was seen on television to be using an I-pad. The laborious task of recording every word uttered in our courts condones delay. Has an answer been found? Is there now a precedent that long hand notes of judges are no longer mandatory? Can we see all magistrates and judges working in court without a paper trail, if so, how refreshing?
The success of the Kenyan constitutional experience is self evident. The Kenyan judiciary hopefully has set the pace for clear-cut methods of dispute resolution in national matters and this performance is likely to rub off not only in the country but also all over the world.
Ghana has an ongoing presidential election petition which is dragging on well over three months after the event. May be we should send our six judges to Accra for a well deserved working holiday.
The writer is a lawyer.
bowryp@hotmail.com
