What Supreme Court ruling means for the future of our demoracy

Supreme Court building.This was on 24th September 2017. [Edward Kiplimo,Standard]

In many ways, Kenya’s Supreme Court is a reflection of the Supreme Court of the United States of America, from where the 2010 Constitution borrowed a lot. In its long history, the US Supreme Court made decisions reflecting competition for constitutional power and the preferences of the judges.

Chief Justice John Marshall knew how to play power realism and outfoxed President Thomas Jefferson in the battle of political wits, in Marbury v. Madison, by declining to help William Marbury, a Federalist political colleague. Although he lost to President Andrew Jackson in the power struggle, Marshall’s reputation remained largely intact.

The court standing suffered when it mishandled at least two cases involving black people. Since the drafters of the US constitution recognised slavery in the 3/5th clause, Chief Justice Roger Brooke Taney believed that “the institution of slavery … is a question of law, and not a case of conscience”. He applied that logic in the 1857 Dred Scott case by decreeing that black people were not citizens of the United States because the constitution did not contemplate them to be so.

He declared the 1819 Missouri Compromise unconstitutional because it denied white slave masters the use of their human property in some parts of the country without due process of law. He thought he was cooling down the rising political temperatures over slavery. He was wrong.

Instead, the ruling contributed to a civil war that achieved three things. It abolished slavery in the 13th Amendment. It also led to the 14th Amendment that defined a citizen to be any person born in the United States. The 14th Amendment forced states to apply the bill of rights to every citizen without discrimination. In subverting the “due process” clause, lawyers and courts developed expertise in legal and constitutional engineering to return blacks to slavery without calling it so.

The process culminated in the 1896 Plessy versus Fergusson where the court asserted that racial separation was not discriminatory. Only John Harlan Marshall dissented powerfully. “The judgment this day rendered will, in time,” Marshall wrote, “prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case”. In the long run, Marshall was proved right.

Kenya’s Supreme Court is comparatively young and judges appear to be grappling in search of location in the public mind. There are many “publics” and, as judges wonder what to stress, the grappling can become judicially damaging. Would they be guided by John Marshall’s power realism in Marbury? Or stress the Taney logic of law as they see it rather than “conscience”. Would they be pricked by John Harlan Marshall’s disgust with court violations of the common sense of justice and the spirit of the constitution?

The court ruling on the 2017 presidential election offers an instance to see the likely direction as judges seemed to address two audiences; present and future. The majority addressed the present, more like Taney, and seemed defensive in trying to explain why they went against general common sense. They carefully avoided dealing with the votes cast while concentrating on IEBC procedural weaknesses.

Although they found no problems with the votes cast or the arithmetic and that no one committed a crime, they still nullified the election because, they said, they found systemic failure, or structural problems, in the IEBC. The three judges present presented their collective reasoning in a 178-page document, which implied that each of the four judges who owned the document wrote 44 pages of the judgement.

They thus satisfied themselves that they had explained to themselves and to other people the "why" of their position. They, however, could not have satisfied Musalia Mudavadi’s wish that every judge give a detailed individual judgement.

Two judges met Mudavadi’s expectation, Jackton Boma Ojwang and Suzanne Njoki Ndung'u, and were the only ones who had given summaries of their judgment while promising to give details. Knowing that they cannot reverse the majority verdict to overturn the will of the voters, the two appeared to be addressing future generations of scholars and raised the intellectual debate to a different high level. As they punched holes in the majority decision, they emerged as judicial philosophers rather than legal technicians.

Ojwang, the professor of law, delivered a 91-page document that was more than a half of what the majority judges put out and appeared to be playing John Harlan Marshall in what seems like the Kenyan equivalent of Plessy. On her part, Njoki Ndung'u’s quantitative output dwarfed all the other judges combined. With her 440 pages of evidence, arguments, documentation, and judicial philosophising, she enjoyed ridiculing the failure of the majority judges to scrutinise basic documents, as she did, before rushing to judgement.

The exercise of the court giving “detailed” reasons for its decision generated curiosity and had unexpected developments. Five judges turned up, but two did not, to give what they believed were detailed reasons. This implies that there might be deep unknowns impeding the court's ability to present a united front on weighty matters. The difference, therefore, was two-fold.

First, three majority judges actually delivered their collective 178-page rationale for nullifying the will of the voters because of structural challenges in the IEBC. They addressed the present. Second, two minority judges delivered a 531-page rebuttal castigating the majority for failure to follow the philosophical due process of law in reaching momentous decisions. The two judges addressed the future.

The writer is professor of History and International Relations at USIU- Africa