Petition: The 'spirit and not the form' keeps justice alive

In 2010, we the people of Kenya acknowledging the supremacy of God of all creation gave ourselves our present Constitution. The first Article of our Constitution provides that all sovereign power belongs to the people of Kenya and would only be exercised in accordance with the Constitution. We went ahead to endorse that the exercise of the sovereign power would either be direct or through democratically elected representatives.

Further, we delegated the sovereign power to various State organs, including the national executive headed by the president who is a symbol of national unity.

The president has the duty and obligation to safeguard the sovereignty of the Republic. This explains why election of a president takes centre stage of the political space in a general election in Kenya and, indeed, in any other democracy. The president wields so much of the delegated sovereign power.

In the recently concluded general elections, the validity or otherwise of the outcome as announced by the IEBC, has moved from the political space to the judicial arena after the same was disputed. The Supreme Court, which has been granted constitutional authority to deal with the matter, has an enormous hurdle to surmount.

Enormous, not because of the complexity of the matter in terms of legal dispositions, but mostly because of the importance of the case to the governance of this nation. Justice is the only tenet that will fuel the Supreme Court in surmounting this hurdle.

Our national anthem places so much emphasis on justice. The third line of the first stanza expresses itself thus: "Justice be our shield and defender" and interestedly this line is followed by "May we dwell in unity peace and liberty". I say interestedly because at times in our national discourse when faced with situations that threaten our unity and peace, some of us often opine that for the sake of peace we should blind ourselves to the realities confronting us and simply move on even if the cost is justice.

Our national anthem seems to me to disagree with this notion. Justice is our shield and defender. In other words, justice is our weapon and warrior; it shields and defends us more so when our unity and peace is threatened. This simply means that unity, peace and liberty are a function of justice. Justice precedes peace. If we are left weapon-less and without our warrior (justice), then, inevitably, our unity and peace will have to be disturbed.

It is for this reason that the move by the National Super Alliance to file a petition in the Supreme Court is laudable. This provides room for not only ventilation, but a grand opportunity for the Supreme Court to remind us once again that justice is our shield and defender.

I do not know what the justice of this case will be, but I do know that it ought to be rendered and seen to have been rendered. The decision of the Supreme Court will give direction to the country in several respects, including confidence in the Judiciary and more importantly in the electoral process. This will call for boldness, decisiveness and fairness on the part of the judges regardless of which way the determination goes.

In taking their oaths of office, judges swear or affirm to uphold the dignity and the respect for the Judiciary and the judicial system of Kenya. This case will put this affirmation to test.

The fact that the Supreme Court, in this matter, will be the first port of call and of last resort makes the situation momentous. There is no avenue for appeal. The spirit of the Constitution and our laws is what should govern the court in order to rise to the occasion.

As a nation, through this case, we have to keep justice alive. By so doing, we will have safeguarded our sovereignty and would then be in a position to grant it to the man to whom it was delegated on August 8, 2017. Whether it is as announced by IEBC or otherwise, the jury is still out there.

As Earl Warren, the former Chief Justice of the US Supreme Court, once said, "It is the spirit and not the form of the law that keeps justice alive."