The Supreme Court on September 1, 2017 found that the August 8, 2017 Presidential elections did not meet the yardsticks of the Constitution and the laws governing elections and set aside the declaration of Uhuru Kenyatta as President. Following this nullification, the Independent Electoral and Boundaries Commission set the date of a fresh presidential election on October 26, 2017. The President’s main contender, Raila Odinga, withdrew his candidature in the fresh election.
The President’s declaration as the winner of the October 26, 2017 fresh presidential election was once again challenged in the Supreme Court. The President’s main contender, his deputy and their coalition, NASA, did not participate in these proceedings. This time the challenge to the Presidential election was unsuccessful and the President was declared duly elected and was sworn in on November 28, 2017.
Jubilee was and continues to be wrong. The Supreme Court did not attempt to burn the country on September 1, 2017. It was, like it did on November 14, 2017, performing its constitutional mandate. The Supreme Court has both original and final jurisdiction in presidential election petitions. The choice to give the Supreme Court such power was made by the people of Kenya in the 2010 Constitutional Referendum. This power can only be taken away by the people of Kenya in a similar constitutional referendum.
Invalidate the election
NASA was and continues to be wrong. Whatever the results of the August 8, 2017 Presidential elections were, those results were invalidated on September 1, 2017. Unlike the High Court which can declare a losing candidate to be the winner of an election if the recount of votes during the hearing of an election petition shows that he garnered the most votes in the election, the Supreme Court does not have the same powers in a presidential petition. The Supreme Court can only declare the winner as duly elected, or invalidate the election. It cannot turn a candidate declared loser into a winner after the fact.
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The right to vote for a president every five years is the only tool that keeps government honest. It is the only tool that ensures those in government don’t assume absolute power. It does so by ensuring their accountability to citizens. If they are not accountable they are voted out.
The Supreme Court’s duty as the ultimate gatekeeper of the presidential election, and with it the right to vote for President, is not and it can never be the preserve of the political class. That duty of the Supreme Court lies at the heart of the right of Kenyans to vote for their president of choice. It lies at the heart of our democracy.
The Supreme Court should not be made one of the tools through which the political process can be influenced. It should not be a means by which Kenyan voters influence in the political process is degraded. It should not be a route to entrench one type of political interest at the expense of other political interests.
Political interest should never come at the cost and expense of public good. Kenyans should choose the President not the other way round. The Supreme Court is and serves a public good. It is the last stand between citizens and the political class. The ongoing attempts to undermine the Supreme Court deserve universal condemnation and unrelenting resistance by Kenyans of all walks of life.
Like the courts who continue to administer justice blindly, the Jubilee government must also start governing with impartiality. It must treat all Kenyans, particularly those who challenge it or its decisions in court, as standing in the same position regardless of their political beliefs or affiliation.
Citizens should not be penalised or discriminated against because of their participation in the electoral process, their voting history, their association with a political party or their expression of political views.
- Kethi D Kilonzo is an Advocate of the High Court of Kenya. [email protected]