Why petitions against apex judges don't auger well with 2027 elections

Supreme Court judges during the hearing of a presidential petition in Nairobi. [File, Standard] The petitions against judges of the Supreme Court remain in limbo, halted by orders obtained by the judges in the High Court in their individual capacities. The petitions are, however, a sword of Damocles hanging over the court, even as it continues to play its critical role as the country's apex court. As this column has said repeatedly, the petitions are legitimately and rightly before the Judicial Service Commission, they represent, in some measure, the commitment to hold public officers to account in the spirit of the Constitution. That said, this column has raised several issues with the ongoing process. Firstly the rightness of the judges seeking stay orders in the courts in proceedings which will end up at the Supreme Court for final determination. Secondly, the constitutional crisis that would arise should the judges be removed and there was no Supreme Court to hear their appeal, which the Constitution makes mandatory before the judges' final removal. When this imbroglio is over, there will be need to review this aspect of the matter with a view to avoiding a constitutional absurdity. But there is yet another consideration that should occupy all the actors in this matter. We are barely two years away from the next presidential election. Watching the current political dynamics, there is no doubt that the 2027 polls will be fiercely contested as always happens every ten years in elections when an incumbent is defending their seat. We all recall Mwai Kibaki's 2007 election that led to the post-poll violence and almost took Kenya to civil war and UhuruRuto's 2017 election that was nullified leading to a violent repeat election. 2027 will most probably replicate elements of these two fiercely contested polls. In 2007, the primary reason the country went into civil war was the refusal by the losing party led by Raila Odinga to submit a petition to the courts arguing against the judges credibility and partisanship. In 2013 and 2017, the courts under Justice Mutunga and Justice Maraga had regained credibility and the parties willingly submitted themselves to the court and accepted the court's decision, albeit "shingo upande". If there is a time the credibility of the Supreme Court needs to be unassailable, it is 2027. Unfortunately, the current wars, especially as they drag along and are fought in the internet streets do not add credibility to the court. Unfortunately for the petitioners, the petitions so far submitted to the JSC, in my humble view, do not have the kind of overwhelming evidence that unequivocably demands removal, even if just in eyes of the public. The kind of evidence that makes, to use Kenyan terms, "the man in Hamsa matatu" believe the judges ought to go home. Of course we are still waiting for other material we understand has been presented inter alia to the EACC. Unless overwhelming evidence is availed, the judges will continue to stay put, legitimately arguing this a collateral war, and legally, courtesy of judicial protection. We need to come to terms with this reality; in the absence of unassailable evidence, the judges will not be removeable. In the meantime, we are hurtling inexorably towards the elections. When an election petition is filed in August 2027, what sort of Supreme Court do we want to be in charge of the process? One on which we have thrown all manner of muck but failed to remove, thereby giving parties a reason to refuse to seek judicial intervention thereby causing an unmitigitable crisis? Or is it time to reconsider the removal and take the next two years, working with the JSC and the Judiciary, to restore some credibility to the court? Isn't the national interest reposed in this latter process in view of the looming 2027 polls? I raise these issues because in Kenya the pragmatism required in building a delicate young democracy appears missing from our public discourse. My mother used to tell me that one "can lose 4 when chasing 8". I worry that in this pursuit of the Supreme Court judges two years before what will be an extremely contentious election, we stand the chance of losing 4 as we chase for an illusory 8. Tis the season for pragmatic sobriety. -The writer is an advocate of the High Court of Kenya

Why petitions against apex judges don't auger well with 2027 elections

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