IEBC, Judiciary must be beyond reproach

“When political leaders cast aspersions on the administration of justice based on a misinterpretation of (my) statements,” complained Chief Justice David Maraga recently, “it has the potential to impair public confidence in our courts; and this concerns me a great deal.”

The CJ was reacting to President Uhuru Kenyatta’s remarks at a recent political rally where, seemingly aggrieved by a High Court ruling that stopped the IEBC’s printing of presidential ballot papers by Dubai-based Al Ghurair, he accused the Opposition NASA of “playing with their thoughts” and vowed that they “will not allow our opponents to use the courts to intimidate the IEBC, thinking that they will win (power) using the backdoor.”

Yet an independent Judiciary is as open as anyone can get, seeking justice through the main door.

“It is no use being Prime Minister unless you can do what you want to do, and I can’t,” whined World War One British Premier Lloyd George, and that plaintive wail seemed to be echoing across a century in the President’s remarks.

Raphael Tuju, the Jubilee head of secretariat, went much further. In a press conference, he claimed that NASA lawyer and Senator James Orengo is ‘related by marriage’ to High Court Judge George Odunga, whom he had spoken of before in the Al Ghurair matter.

And that is the true tragedy – this present tendency as we approach the August 8 elections to downgrade the importance and dismiss the independence of institutions such as the Judiciary, and instead concentrate upon its sociology, tribe, ‘party affiliation’ and in Tuju’s utterances, downright nepotism.

So that even a Supreme Court Justice, after Executive aspersions from the likes of lawyer Senator Kipchumba Murkomen, may have the public view him/her through the ethnic and ‘political party’ prism, even when they are deciding upon an election petition on which the future of the existence of the State may hang.

When the Deputy President speaks of a scheme to have the August 8 polls postponed, and publicly questions the impartiality of the Judiciary by stating that ‘there are judges who have openly shown their political hand,’ then that is one powerful arm of the State trying to knock the cards off the hands of another arm of government (the courts).

Disagreeable edicts

Yet it is the courts’ duty to act as a bulwark of liberty against executive encroachment and lack of transparency to the public by an election presiding body such as the Independent Electoral and Boundaries Commission. Why should a competing party grieve a courtroom loss louder than the bereaved?

It is in public interest for the coming General Election to have what the Russians call ‘glasnost’ – openness and transparency. The results ought to be clear as glass; not muddied up at hidden Bomas or clouded by shouts of ‘uncertified Form 16As.’

The debacle of going to court to challenge results like 2013 should not happen, although that time, the horse had bolted the stable. This time, IEBC should make sure the stable doors, read avenues of rigging, are closed.

In a two-horse race such as the one between NASA and Jubilee, the two parties are treated as opposing entities, reliably restraining each other in the course of a government’s tenure – and the worthy Opposition. But when it comes to the General Election, they become like footballers in a field.

IEBC is the referee, presiding over the game. If Giroud of Arsenal scores an obvious offside goal over Courtois of Chelsea, and the referee allows it, then he gets a brace from another obviously offside position, and it is still not called, Luiz and Cahill may be tempted to tackle him from behind as he goes for the hat-trick.

They may break his leg in the process. Other players may get involved leading to a brawl. In the stands, fans may begin to fight, police wade in with batons and tear-gas, riots outside the stadium, and London burn. This is the PEV analogy. All because of the bloody referee!

The Judiciary, then, is like the FA (Football Association), setting and interpreting the rules of the game, and how it will be played. Only after that may the referee blow the whistle for the game to begin. The days of the old Judiciary, shackled to and by the Executive, making rulings woven in procedural inhibition (and oft legal fictions) and anxious not to offend (to the extent that powerful people like the late Nicholas Biwott got Sh30 million from Book Point for stocking some ‘slanderous’ book are gone.

In the case of a Prince making disagreeable edicts, the sovereign courts owe it to their reputation to offer to the said prince their grave remonstrance, and to try in every sort of way to turn him from his course. And, of course, this was what the Chief Justice was doing in his statement.

And while the example of Olivier Giroud scoring a hat-trick against Chelsea FC remains in the realm of fantasy, the spectre of undermined courts and post-poll violence remains all too real in 2017. We all should be concerned.

Tony Mochama is the author of the PEV-journalist’s memoirs ‘The Road to Eldoret.’