Judges, CORD propose more time for presidential petition hearing

The Supreme Court of Kenya sitting in Nairobi during the Presidential petition Pre-trial hearing.[PHOTO:EVANS HABIL/STANDARD]

The three-minute long ruling of the presidential petition was pulsating and peculiar. And now the Judiciary and Opposition are united in defusing political tensions similar to those witnessed on March 30, 2013 when the Supreme Court upheld the election of Uhuru Kenyatta as Kenya’s fourth President.

Ever since the three-minute verdict delivery, Chief Justice Willy Mutunga has remained a source of heated debate, amusement, mockery and even ridicule among politicians and legal minds.

Upon delivering the verdict, Dr Mutunga proclaimed the Judiciary had discharged its constitutional role: “It is now for the Kenyan people, their leaders, civil society, the private sector and the media to discharge theirs, to ensure that the unity, peace, sovereignty and prosperity of the nation is preserved.”

It is such calls that led to the widespread refrain of “accept and move on”. But two years on, truth has unfolded — Kenyans have neither forgotten nor moved on. Curiously, the Mutunga-led Judiciary now leads the push for extension of days for the presidential petition from 14 to 30 days. High Court Judge Justice Luka Kimaru on Tuesday revealed that an internal report prepared by the Judiciary working group recommended the extension of the time.

Short period

“The time for determination of the presidential election petition is too short. In fact, the recommendation which is now contained in a report presented to the Chief Justice is that it should be heard within 30 days,” said Justice Kimaru at a Nairobi hotel during the launch of a report on election management in Kenya.

Martin Oloo, who teaches at the Kenya Law School, views the latest development as a belated confession by the Judiciary that it did a hurried and very poor job of the 2013 presidential petition. “Execution of a case of such a magnitude within 14 days is impossible, and Mutunga and his team ought to have been honest with Kenyans. There is no enough time to prepare the case, serve interested parties and for the judges to admit all relevant submissions and consider analysis of the same,” argues the constitutional lawyer.

During the historic hearings, Raila Odinga’s petition challenging the declaration of Kenyatta as winner of the March 4, 2013 poll suffered a major blow when the Supreme Court rejected the former Prime Minister’s application for a forensic audit of the Independent Electoral and Boundaries Commission (IEBC) IT system, saying it was not practical.

The six judges, including the CJ, Justices Philip Tunoi, Smokin Wanjala, Jacktone Ojwang’, Njoki Ndun’gu and Muhammed Ibrahim, also expunged a 900-page evidence presented by the petitioner’s lawyer, George Oraro, citing tight timelines for determining a presidential poll petition. During the tension-packed case, the 14 days were largely consumed by the filing and serving of legal papers to concerned parties, filing of written responses to the petitioner, two-day pre-trial conference, actual hearings which took only two days, and another two final days for the judges to retreat, discuss the submissions and make a determination of the case. The three-minute ruling was also a result of this time constraint. The full written ruling was only availed after two weeks. Constitutional lawyer Paul Mwangi describes the arrangement as one where “justice is being compromised at the altar of convenience”. Mwangi regrets that existing legislation accords little time for execution of a case of such a magnitude.

“We have been living with a lie that the presidential poll was heard and determined, but this was never the case. We simply rushed through a crucial exercise in a most unjustifiable way,” says Mwangi, who now spearheads the official Opposition’s push for constitutional reforms, dubbed “Okoa Kenya Initiative”.

In their proposal, titled “Performance Management Report”, the Judiciary through a report prepared by the Justice Daniel Musinga-led committee, concedes that 14 days are not adequate for execution of a presidential petition. The report was presented to CJ Mutunga on April 15.

However, while making the revelation on Tuesday, Justice Kimaru appealed to politicians and members of the civil society to mobilise voters to amend the relevant clauses of the Constitution to facilitate the necessary changes. But Mwangi observes the Judiciary’s proposed days are still not realistic. The lawyer, whose “Okoa Kenya Initiative” proposes a two-month long presidential petition period, argues the Judiciary doesn’t know what it takes to prepare for a case.

“The judges cannot impose timelines on us because this is not their area of expertise. Instead they should be telling us what time they need to hear the case and then allow us (lawyers) to do calculations on what time we need to prepare and push through our legal arguments,” says Mwangi.

Okoa Kenya proposes the amendment of Article 140 of the Constitution to give room for lodging and service of petition at the Supreme Court and determination within 60 days. Mwangi would not, however, confirm the possibility of a merger between the Opposition driven initiative and that of the Judiciary.

Observers are in agreement that  the Supreme Court judges were responsible for mishandling the 2013 presidential petition on account of “misplaced fears” of eruption of violence. In the words of Oloo, these fears may have persuaded the judges to put peace before the truth. Vice Chairman of Jubilee Alliance Party (JAP) David Murathe equally warns against such “misplaced fears”. “Petition or no petition, the President’s party is adequately prepared for the journey ahead,” says Murathe.