As the Supreme Court adjudicates the third consecutive presidential petition since the promulgation of the Constitution 12 years ago, Kenyans must appreciate that the country has had a paradigm shift in terms of electoral dispute resolution. During the post-election violence of 2007, the courts were largely seen as a nonviable avenue of justice because judges were perceived as part of the Executive.
Judges were appointed by the President before 2010. Due to the circumstances, the Bench was susceptible to the machinations of the appointing authority. Consequently, trumped-up charges, detentions without trial, and torture were committed under the judge's acquiescence.
In 1997, Mwai Kibaki's attempt to challenge President Moi's win was thwarted by a technicality that required him to serve the respondent personally. This was despite the fact that the President enjoyed 24-hour armed protection. However, while dismissing Kibaki's petition, the courts determined that he did not demonstrate that he had attempted to serve the President. Kibaki had attempted to skirt the issue by publishing the notice in the Kenya Gazette, which could have served as a substitute.
Kenya's first multi-party election since 1966 also resulted in an election petition that also fell on a technicality concerning Kenneth Matiba’s failure to sign the petition, which was done on his behalf by his wife as his Power of Attorney.
Since 2010, the Constitution has improved court accessibility, including a provision prohibiting unreasonably restrictive procedural rules and technicalities. One can even file a case through informal documentation such as a letter to the Registrar.
Access to justice has also been enhanced by expanding the right or ability of a party to bring an action or appear in court (locus standi). According to Article 22, anyone can bring a lawsuit if they suspect their fundamental rights or freedoms are being denied, violated, infringed or threatened. It also allows persons to file matters on behalf of others, including members of groups, classes of persons or interest groups. One can also approach the court in the public interest.
In the current petition before the Supreme Court, apart from Raila Odinga and Martha Karua, private citizens have also filed separate petitions being adjudicated alongside the main petition.
In the past, potential parties had to demonstrate to the court that they had a sufficient connection to the matter at hand. For these reasons, Nobel laureate Wangari Maathai's court case attempting to stop the construction of a 60-storey skyscraper at Uhuru Park was thrown out by Justice Norbury Dugdale in 1989.
The level of confidence we see in the court is due to the constitutional transformation that created an independent judiciary that is also financially and functionally independent; its human resources are managed by an equally independent Judicial Service Commission comprising of diverse interest groups. In most cases, judicial officers are hired in an open and transparent manner, with little interference from the executive branch.
However, attempts have been made to reverse the transformation. For example, the Executive has supported efforts to amend the law so that the Chief Justice can be picked from a pool of three nominees rather than one name nominated by the JSC. There has also been interference regarding the composition of the Judicial Service Commission, and most recently, the BBI failed in its attempt to appoint an Executive-appointed judiciary ombudsperson.
Until recently, the Executive failed to set up the Judiciary fund which affected financial independence of the Judiciary. The latest intrigue is the President’s refusal to appoint six appellate judges. This is seen as an attempt to regain the functional control, as opposed to the ceremonial role of appointing judges.