Judiciary faces an acid test over poll cases

By Wahome Thuku

As Kenya strides to elections history has thrust onto the shoulders of the Judiciary the burden of arbitrating on legal suits with potential of drastically changing the shape of politics.

Most of the cases awaiting decisions have a direct bearing on the new election rules, 96 MPs deemed to have defected already, academic ceiling for elective posts, the 80 new constituencies, and the vetting organ that is the Ethics and Anti-Corruption Commission whose top three appointees a court has blocked from being sworn-in.

The Judiciary under Chief Justice Willy Mutunga is literally staring at its major acid test since it was reformed under the new Constitution. Even more critically, has blocked from being sworn-in.

The Judiciary under Chief Justice Willy Mutunga is literally staring at its major acid test since it was reformed under the new Constitution. Even more critically, the courts are increasingly becoming the arbiter of disagreements among politicians in Parliament and in political parties.

Most of the cases also have a direct bearing on the elections, including when it should be held, whether losing presidential candidates could be nominated, and if the 80 new constituencies are constitutional. Another seeks to block the Government from withdrawing Sh424 billion, part of which will go to Independent Electoral and Boundaries Commission’s election budget, without the requisite Appropriation Bill. 

In every way the court today, through its retinue of judicial staff, hold the key to critical decisions that could determine virtually every aspect of the General Election.

The speedy conclusion of the cases, and the fairness of the judgements have turned the national radar onto the Judiciary. Until Dr Mutunga took, this institution suffered credibility crisis.  The Executive, power brokers, and business interests often saw it as susceptible to manipulation.

Close to a dozen cases await determination by the High Court and the Court of Appeal, all of them with potential to alter the planning of elections. President Kibaki cited five of the cases on Monday as the reason for rejecting multiple amendments by MPs.

The litany of cases has also put the three arms of government – Executive, Legislature, and Judiciary – on another collision path in so far as it concerns the question which of them should have the final say on some of the burning issues.

Parliament chose to legislate on the issues that were pending in court when it made several amendments to the Political Parties Act, and Elections Act, prompting President Kibaki’s intervention.

Separation of powers

The Legislature asked the President to sanction their work by assenting to the Bill, but he declined. “In keeping with the doctrine of separation of powers, matters which are before the court should not be the subject of legislation by the National Assembly,” Kibaki reminded the MPs.

Effectively, the Executive allowed the Judiciary to have the final say.

It means the courts will decide on the cases pertaining to the elections, Parliament will amend the laws accordingly, and the President will then assent.

One of the cases filed by Kangundo MP Johnstone Muthama and 100 councillors, seeking determination of academic qualifications of candidates, will be ruled on tomorrow.

The case is among those Kibaki cited in declining to assent to the Bill in which Parliament had amended Section 22 of the Elections Act to allow only university graduates to vie for parliamentary seats.

Muthama and group are challenging the constitutionality of those sections, even as they require post-secondary education for candidates. They argue that the requirement is discriminatory. His lawyer, John Khaminwa, says human beings have achieved greatness, even without university degrees.

A similar case which was brought to the President’s attention by the Attorney General Githu Muigai on Monday was filed by two voters – Alexander Muthengi Muchee and Daniel Kipchirchir Sang – last November.

They cite the constitutional decree that says, “Nobody should be subjected to unreasonable treatment.” They argue millions of Kenyans are disadvantaged since they could not access to university education due to social, economic, and political injustices.

The case against IEBC and the AG is pending before Lady Justice Mumbi Ngugi.

Also awaited is a decision by five Court of Appeal judges on when the election should be held. An appeal challenging a decision in which the High Court left the determination of the date to President Kibaki and Prime Minister Raila is being argued before the five judges.

Two civic society organisations have filed the appeal pushing to have the court declare that elections should be held in October 14.

Though IEBC has set the elections for March 4, next year, it has insisted this date is tentative, as court ruling is awaited. But if either party decides to appeal the ruling when it comes, the suspense on election date will stretch further.

Party hopping

Another pending matter relates to party hopping. President Kibaki declined to sign amendments to Section 51 of Political Parties Act to allow defections, citing cases filed by Mathira MP Ephraim Maina, his Makadara counterpart Gideon Mbuvi Sonko, and Migori politician Isaac Aluoch.

Maina and Mbuvi want the High Court to determine the legality of their expulsion from Narc-Kenya and Safina for allegedly violating the Act and joining other parties.

They are seeking declaration on whether their seats can be declared vacant for alleged violation of their parties’ constitutions.

Their case resonates with that filed by Aluoch to have 96 MPs, who left their parties kicked out of Parliament, and ordered to refund to the Treasury all the salary and allowances they have earned. The case is filed against the Parliamentary Service Commission, the Speaker of National Assembly, and the AG.

A lobby, Friends of Raila (Fora) had earlier filed a similar case, seeking interpretation of sections of the Political Parties Act.

The Judiciary is also handling over 60 cases challenging the decision by IEBC to delineate 80 new constituency boundaries.

The grievances are as many as the cases, ranging from interest in safeguarding political territories and resources, constituency names, sizes and population, among others.

The outcome of the cases, which have been heard under one case, could be a relief or a nightmare to the electoral body.

The litigants accuse IEBC of changing electoral boundaries without any justification or consultations with constituents. Judges presiding over the matters have toured the country, to hear individual cases.