Enough ink has been spent analysing the substance of this week’s Supreme Court’s reasoned decision so I have opted to speak on an aspect of the judgement that many missed but which may have betrayed what may well be a debilitating challenge for the court.
My opinion, being that of an observer could be wrong, but there is too much in the process that affirms my fears that all is not well in the management of the court.
Many of us who listened to the Supreme Court’s initial and Wednesday’s reasoned judgments focused on the substance of the Judges’ opinion thus missing some aspects of the process that should cause concern.
The aspect I am speaking to was made most obvious by the words spoken by Justice JB Ojwang at the beginning of his judgement.
Presented in his usual soft but Anglicised tone he bemoaned that “so proximate to the delivery of the of the Supreme Court decision in this pivotal case did I learn that I fell on the minority side..” That, coming from the good Professor was heavy.
For those familiar with the workings of Judges, it is normal for judges after listening to a matter to retire, jointly determine what the issues under consideration are, and after some personal analysis listen to one another’s initial positions, a process referred to as conferencing.
In that process there is usually an attempt to persuade each other to review positions in light of the law and the facts. This practice is essential as a good Court tries as much as is practicable to move together especially in a quasi-political judgment like an election petition.
Where agreement becomes impossible, it is good practice to then agree how the majority and minority decisions will be written and as much as possible to allow room for mutual pollination.
The majority will share their reasoned judgment in good time for the minority to react. If I heard the Judge correctly, he was indicating that he learnt that he was in the minority just before the delivery of the judgement.
This can only say one thing; the kind of intense conferencing I allude to, and which should of necessity accompany a matter of this magnitude, was either lacking or was grossly insufficient.
That would probably explain the curious nature of the delivery of the September 1 judgement where the majority gave no summarised reasoning for their judgement, while the minority gave a fairly comprehensive summary of their judgment.
I would have dismissed this anomaly had I not watched with concern the goings on at Wednesday’s delivery of the reasoned judgement.
JOINT APPROACH
Alive to Justice Ojwang’s quip, I was looking for aspects of the judgements that disclosed a dysfunction. I was not disappointed.
The two sets of judgements read as if their writers had been flying blind. The focus of the majority and minority judgements on critical aspects was fundamentally different giving the impression that the minority’s reaction to the majority was a last-minute act. The majority appeared to not have read the minority before they appeared in court.
If the majority had been aware of the minority judgement, particularly that of Justice Njoki Ndung'u in good time, one would have expected a joint approach to the evidence that Justice Ndung'u concentrated on at length in her judgement.
That such a fundamental issue was only dealt with by one judge while others just ignored it may point to a fundamental dysfunction of the court and must cause concern.
It may mean that the divisions in the Court which were evident towards Dr Mutunga’s exit have not only worsened but are prejudicially affecting the effectiveness of the Court.
This would reveal a gross failure of leadership. It would open a chink through which those who thrive in co-opting and destroying national institutions would gladly hop in. We would start to see the court as an extension of our national dysfunctionality. In a country where few institutions give hope, this apex court must continually inspire confidence that it will not slide down the path of infamy.
