Supreme Court too casual in ‘Raila Vs IEBC & Others’

By Elisha Ongoya

On 30th March 2013, the Supreme Court delivered its unanimous decision in what had been billed as “the most important case of our time”. This was the very last day that the Supreme Court had, in law, to decide matter.

The Court then ordered that “the detailed judgment containing the reasons for decision of the Court will be issued within two weeks from today.” This latter aspect was part of the orders of the court.

On 16th April 2013, the 16th day from the date of the decision, the court sat to deliver the decision. No explanation was given for the delivery of the decision outside the timelines set by the court. This omission, to an observer of the judiciary’s recent investment in courtesy, was telling. This was casual.

The practice of court is that when the court summons parties in open court as it did, it reads its judgment, dates and signs it. Again, the judgment was never read. The Chief Justice pronounced the manner in which the decision was to be disseminated and the process ended up being a witnessing of the “signing ceremony” of the decision.

This, for what had been billed as “the most important case of our time”, was casual.

The content of the judgment will definitely be a subject of detailed inquiry by the general public. This space is scarcely sufficient for such detailed inquiry. However, certain snippets from the judgment would give us the degree of seriousness with which the judges treated the matter that was before them.

One of the instruments of implementation of the mandate of the Supreme Court in Kenya is the Supreme Court Act. At Section 3, the Act sets out its objectives and therefore the objectives of the Court.

I suggests that a sound detailed inquiry of the soundness or otherwise of the decision of the Court in this matter should be reflected against this very sound statutory objectives of the institution.

The judgment reveals lots of material internal inconsistencies in the reasoning. I have selected a few aspects for this contention. On whether rejected votes ought to have been included in determining the final tally of votes in favour of each of the candidates by the IEBC, the court restated the express provisions of article 138 of the constitution which requires that for a person to be declared president-elect, such person must, among other things have received “more than half of all the votes cast in the election”.

The court proceeded to reason at paragraph 260 of the judgment: “What are “all votes cast?” Do these include even the “rejected votes” which, of course were cast? Or are they limited to the properly marked ballots which figured in the vote tally for the individual candidates?

It is apparent that the court had acknowledged that in respect of the so called rejected votes, they “of course were cast”. Yet the constitution talks of “all votes cast”.

Against this background, the court concluded at paragraph 285. This of course begs the question, when are some “cast votes” not “votes cast”?

What will interest analysts is the court’s reliance on the decision from Seychelles to reach the above conclusion from the Constitutional Court of Seychelles in Popular Democratic Movement Vs Electoral Commission (see para 266).

What will confound many students of law is that Burhan J was actually a dissenting judge at the Seychelles Constitutional Court in the quoted decision. Can a decision of a dissenting judge be taken as the decision of the court from which it is cited? This too was casual.

Original record

Other matters that will interested analysis in this case is whether the court ever complied with its own order or scrutiny and re-tally of votes that it had made on its own motion in the matter.

Such failure of the court to observe its own orders without any explanation comes across as casual.

The court further found that from the 33,400 polling stations in the country, only 18,000 polling stations were scrutinised. The question the court never answered was why didn’t IEBC avail the other about 15,000 forms for scrutiny? How verifiable were the results in light of the missing forms? Such lack of interrogation was casual.

Equally the court found that “In addition, the aggregate results of Form 36 votes from 75 constituencies were missing.”

If aggregate results in the final results-declaration forms in 75 constituencies were missing, in the court’s own scrutiny of the documents, the court ought to have asked “so what did the Commission declare in respect of those constituencies?” Such a lack of interrogation too was casual.

And what with the court’s finding that the “Green Book”, though not provided for in law, it is not apparent that such an original record required to be provided for by law? Was the court approving of the conduct of the elections with instruments outside the law? Does that promote the rule of law of arbitrariness? This too was casual.

From the foregoing it would appear that the judgment of the Supreme Court in Kenya in Raila Odinga Vs The Independent Electoral and Boundaries Commission and Others is a sad commentary on a number of aspects.

It is a sad commentary on how not to evolve jurisprudence. It is a sad commentary on how not to entrench a culture of constitutional accountability in governance. It is a sad commentary on how not to portray judicial honesty.

It is a bad example to courts subordinate to the Supreme Court. It is a sad commentary on how not to enhance to confidence of the citizens in the electoral system.

Writer is an Advocate and Law Lecturer Kabarak University School of Law.

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