There can be no justification for the kind of judge-bashing that has emanated from the Jubilee leadership this past week.
These attacks were an unfortunate sequel to previous NASA scripts. The NASA leadership has previously called the Supreme Court “koti bandia” and recently threatened to boycott the elections unless the Court of Appeal ruled in a particular way.
Such attacks on the Judiciary erode public confidence in an institution necessary for the maintenance of the evasive rule of law. This position is not to say that the courts are above criticism. There is nothing wrong in pointing out where the courts are misguided on the facts and the law; judges are not infallible. It is when criticism mutates to character attacks, many times unsubstantiated, that it crosses the decency line and injures the institution to our overall detriment.
Having made this distinction, I wish to record my own concerns on the court’s decision on the ballot tender case. Since the electoral commission has appealed the decision, I feel restrained in the extent to which I can critique the High Court decision due to the sub-judice rule.
There is, however, no breach of sub-judice to assert that the court was absolutely wrong in its decision to cancel the tender for the reasons that it gave.
For the avoidance of doubt, if the court had found that there was impropriety on the part of Al-Ghurair, in the manner alleged by NASA, I would have been the first to support the court, even if its decision would lead to a postponement of the elections.
Fiat justitia ruat caelum. Let justice reign though the heavens fall. But this was not the reason the tender was cancelled.
I have read the court’s long judgement and in its principal conclusions, the judges found no merit in the allegation of impropriety on the part of Al-Ghurair. There was no evidence of collusion between the company and President Kenyatta or his relatives as claimed by the NASA team. There was even no evidence that the Majid Al-Ghurair, who headed the delegation to State House was the same Al-Ghurair of the ballot printing firm.
The court also found no merit in the allegation that Al-Ghurair had been preferentially treated in the procurement process by IEBC. I find it amazing that this aspect of the judges’ ruling has hardly been part of the public discourse.
No one seems bothered that NASA went to town with serious allegations against the publishing company, against the President and a host of other innocent Kenyans, on such a critical and delicate national issue without a shred of evidence.
Yet in many peoples’ minds, the tender was cancelled because the NASA allegations were found credible, thus reinforcing even more severe distrust of the IEBC a month before the elections.
This, and a host of other unsubstantiated allegations liberally bandied about, would be unacceptable except that we are in a silly season. Back to the case. One would have expected the judges, knowing how destabilising a cancellation of the tender would be this late in the election cycle, to only cancel the tender for very serious breach of the law.
The reasons given by the judges, the lack of public participation, while fatal in some circumstances, cannot surely be fatal in a procurement. Not one which the court accepts the IEBC was allowed by law to carry out. Not one in which the court even admits that IEBC could still lawfully award the tender to Al-Ghurair! That is not to demean public participation; it is one of the cardinal pillars of our Constitution.
It is to say that public participation must sometimes be weighed against other critical considerations, in the present case, against the public interest in certainty about the elections.
As we speak today, no one can say for certain that we will have elections on August 8.
For us to revel in this degree of uncertainty merely because there was no public participation in procurement defeats all reason and casts a dark shadow on an otherwise vibrant and public-spirited court.
The writer is an advocate of the High Court of Kenya.