Supreme Court judges must do whatever it takes to uphold democracy

From left: Supreme Court judges Njoki Ndung'u, Smokin wanjala, deputy Chief Justice Philomena Mwilu, Chief Justice David Maraga, Jackton Ojwang and Isaac Lenaola, during hearing of the presidential poll petition. (Photo: Beverlyne Musili/Standard)

I want to make clear at the outset that it’s not my job to determine how the Supreme Court will rule in the presidential petition filed against Jubilee’s Uhuru Kenyatta.

I believe in the centrality of judicial independence as the pillar of the rule of law and democracy. That doesn’t mean I don’t have strong opinions about judicial decisions, especially at the Supreme Court. I do – I will disagree, or agree, with the court based on my reading of the law and the evidence as a jurist and legal scholar.

I may not always accept the court’s rulings, but I will respect its role as the final arbiter. That doesn’t mean I won’t discredit jurisprudentially defective, or legally untenable, decisions.

As Kenyans know, I wouldn’t have sought to be the country’s Chief Justice if I didn’t have an abiding faith in the Supreme Court and the institution of the Judiciary as the cartilage between citizens and the tyranny of the state.  But it’s one thing for me – as private citizen – to disagree with the Supreme Court, or question individual judges, and quite another for those in power to attack it, or demonise officers of the court.

The Executive and the Legislature have every right to express disappointment in a court’s opinions. But they overstep the barrier of the separation of powers – the cornerstone of checks and balances in a democracy – when they vilify the courts or malign individual judges.

The misconduct of the Executive and the Jubilee political class in the wake of the Supreme Court’s September 1 ruling nullifying Mr Kenyatta’s victory was inexcusable. It was a naked and brazen attempt to return the Judiciary to its traditionally subordinate place in Kenyan history – as a marionette and handmaiden of the Executive. Our Judiciary was constitutionally freed from this supplicant’s role by the 2010 national charter.

I personally believe it’s the 2013 Supreme Court ruling upholding Mr Kenyatta’s victory that made Jubilee believe that the court will always do the state’s bidding. Just look at history – up to that point the courts had always wilted in the face of the Executive in Kenya and elsewhere in Africa.

But the September 1 ruling by the Supreme Court was a thunderbolt that struck Jubilee – and the entire world – as virtually the Second Coming. Jubilee’s leaders reacted like punch-drunk pugilists out for the count. The rest of the world celebrated Kenya. For once, the global media lauded an African country for its bravery and courage to stand for the rule of law.

As a Kenyan, I walked tall in America on that day. Now, the Supreme Court is faced with another eureka moment. Will the court build on the legacy of September 1, or return to the cave where past Kenyan courts have been consigned? Will the Supreme Court – no matter how it rules – become the guardian of our young democracy?

The Supreme Court has two key petitions which it will hear as one. The first, and the more substantive one, is filed by civil society doyens Njonjo Mue and Khelef Khalifa. The second, which also raises weighty constitutional issues, is lodged by politician Harun Mwau.

Mr Mwau – known colloquially as The Boss – is a colorful figure. It was he, as Kilome MP, who popularised the memorable Kikamba phrase “Osa Vinya.” There’s a literal and political meaning to the phrase. Literally, Osa Vinya means “take heart,” or “have courage.”  But politically, it means “take the power.” It’s ironic that Mr Mwau, the so-called father of Osa Vinya, is now asking the Supreme Court to exercise its “constitutional power” to restore our democracy. I see Osa Vinya as my clarion to the Supreme Court. In 2013, a young Supreme Court faced an existential moment. It squinted and whiffed on the ball. In August, a more mature court faced a constitutional moment. It stared the beast in the face and hit a bull’s eye.

This month, the Supreme Court faces an epochal challenge. Will it blink – like deer caught in the headlights – and fail to plant a flag for Kenya’s democracy? Will it cower in a closet and submit to the ruling elite? Whatever the Supreme Court does, it will make or break – forever – its legitimacy as the final arbiter of presidential elections and the Constitution.

There are those who say Kenyans are tired of elections and the Supreme Court must end the season by upholding Mr Kenyatta’s October 26 one-man victory. I say baloney.

The Supreme Court must do what it must – even if that means again nullifying the election and calling for a fresh one.

Doing otherwise would condone an illegitimate regime. India offers some lessons. When India’s Congress Party became an impediment to democracy, its courts stepped in to save the country. Osa Vinya Supreme Court!

- The writer is SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of KHRC. @makaumutua.