The hearings to resurrect the BBI ended at the Supreme Court this week. It was in every respect a sober but stimulating show.
The oral presentations by counsels were inspiring across the board but I must commend Prof Githu Muigai and Mwalimu Elisha Ong’oya for outstanding performances.
The court was also impressive in its intellectual engagement. As we await the judges’ verdict, there are several issues that require reflective contemplation.
First is the management of the case by the court. The Supreme Court is the highest court in the land.
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The case before it is one of the most consequential in the country’s journey as a constitutional democracy and has implications on jurisprudence way beyond our borders.
I was therefore surprised by the court’s unwillingness to budge from its directions on issues like time allocation.
Dr Khaminwa’s plea was on point. Why the rush?
This was not a run-of-the-mill dispute; the decision of the court may well determine the character of the republic for ages.
Considering that unlike the lower courts there was no direct correlation between the August elections and the court’s decision, why was the court so inflexible?
Why not allow a full week for hearing so that everyone legitimately felt they had made their case?
While one appreciates the court’s position that it had already read the written submissions, that opinion misses several points, key among them that the public do not get sight of the written submissions.
Their only perspective of the case is in the oral hearings, and on such a consequential matter public engagement is good for the public and for the image and credibility of the court.
Secondly, the refusal to give audience to some lawyers, including Martha Karua and Ochiel Dudley was disturbing.
The court would have appeared more accommodating and fully concerned with the ends of justice by giving them time but limiting it. Refusing audience in toto appeared draconian and left an unnecessary stain on the process.
The third issue is timing. We are six months from a general election pitting two of Kenya’s most contentious politicians, if one is to recall events of December 2017. Their contest will definitely end up in the Supreme Court.
BBI is a political case, and the two contestants hold diametrically opposed positions, which means one of them will “lose” when the court delivers its judgement.
While I know the court’s decision will be made purely on merit, the court must be aware that a decision that appears to be handing one side a political win will be framed in a manner that can damage the image of the court very close to an election.
If for instance, the court overturns the decision of the two lower courts, it will open itself up to vicious criticisms of being compromised or acting at the behest of the “system”.
If it affirms the lower courts, it will be attacked for being an activist or compromised court playing to the political gallery.
Yet, each of those critics will be expected to go to the same court and trust the court to be fair in a contested presidential petition in August!
This is a weighty issue I wish the court has reflected on especially considering that the decision will have no formal bearing on the 2022 elections. The judgment could have been delivered after the elections.
This would have allowed the court to enter the delicate process of the presidential petition without a burden, however underserved, on its back.
I do hope that whichever way the decision goes, each of the contesting political actors will take it in good stride and not make political capital of the decision in a manner that harms the court’s image. One can only hope.