Mutunga appoints judges to hear Joho degree case, advises IEBC on polls

Chief Justice Willy Mutunga has appointed a three-judge bench to hear a case challenging the authenticity of Mombasa Governor Hassan Joho’s degree certificate.

The Bench, comprising justices Christine Meoli (presiding), Edward Muriithi and Martin Muya, is to sit in Mombasa.

Last year, Silas Otuke filed a case at the High Court claiming the Constitution and the Elections Act had been violated. Justice Muriithi in his May 14 ruling said the matter raised substantial legal questions that warrant consideration by a three-judge bench.

At the same time, the CJ has called for the streamlining of the electoral process to reduce the number of petitions. Dr Mutunga challenged the Independent Electoral and Boundaries Commission (IEBC) to exhibit “competence, impartiality, fairness” so as to reduce electoral disputes that end  up in courts.

“The IEBC must demonstrate competence, impartiality, fairness, and a remarkably high sense of accountability to the public, and the parties who are its primary customers. Nothing could imperil our democracy more than an electoral agency that is contaminated by bias, infected with incompetence, and afflicted by a virulent virus of minimal public accountability,” Mutunga said. power-outage

He said the IEBC must particularly avoid holding information from the public. “Materials that are in the possession of the IEBC are not private property.”

Interestingly, the remarks are contained in a separate ruling, which Mutunga wrote in support of the unanimous Supreme Court decision to overturn the nullification of Meru Governor Peter Munya’s election last Friday. Mutunga wrote the additional opinion expounding on the position of the Constitution regarding a free and fair election.

Accountable and transparent

The opinion, riddled with political undertones, reads like an academic  paper on Kenyan’s tainted electoral history. “Kenya’s political history has been characterised by large-scale electoral injustice. Through acts of political zoning, privatisation of political parties, manipulation of electoral returns and a host of other retrogressive scenarios, the electoral experience has subjected our democracy to unbearable pain,” he said.

“Our history is replete with examples that would make the Eatandswill election in Charles Dickens’s The Pickwick Papers (1836) look like child’s play,” Mutunga said, adding that at the constituency counting-centre, votes disappeared when lights, either by design, negligence, or power-outage, went off.

 He says the problem had been addressed by Article 81 of the Constitution requiring an electoral system that is simple, accurate, verifiable, secure, accountable and transparent.   The CJ, who is the President of the Supreme Court, said the courts would not intervene in electoral disputes if all those entrusted to manage the elections did their work competently.

“If party agents are required to be present, sign statutory forms and undertake any other legitimate duty that is imposed upon them as part of the political process in an election, then they are under obligation to do it. To fail to do so is not only to fail one’s party, but also to fail our democracy. 

He said given the strict electoral timelines in the Constitution, collective responsibility to ensure free and fair elections, would result in cogent grounds upon which election results are challenged. 

“We will start seeing candidates conceding defeat in elections because they have been free and fair.  We will see electoral litigation that may be ended through consent of the parties because they agree that the grounds upon which the election results were based, are solid and not frivolous.”