On Monday, the Supreme Court upheld the electoral commission’s declaration that Jubilee’s Uhuru Kenyatta was validly elected President on October 26. Only a Martian fool would celebrate the court’s verdict. That’s because the legality of an action doesn’t amount to its legitimacy.
The de jure and de facto declaration — by the Supreme Court and the IEBC — of Mr Kenyatta’s election doesn’t make it legitimate. What’s legal — and what’s legitimate — can be as starkly different as night and day. This distinction is not only manifestly evident to legal philosophers like me — it’s in fact more clear to the woman on the street. Supreme Court’s decision confirmed that legal paganism — jurisprudential formalism — is alive and well in Kenya.
Legal pagans are jurists who treat the law as though it were disembodied from the body politic. It’s a school of thought that strictly construes the law as an atomistic artifact that’s autonomous and independent of society. It’s an erroneous belief that the law is knowable by itself, or that legal instruments should be read as black-and-white print. Such jurists don’t believe the law is a living thing.
This is the history of common law in Kenya — it’s a rigid, dry, and unappetising interpretation of legal code and precedent, or prior legal authorities. These lawyers believe the law is housed in the museum of antiquities. I incorrectly thought the Supreme Court had turned the corner on September 1. I was dead wrong. My celebrations — like the rest of the world — were premature. The September 1 ruling nullifying Mr Kenyatta’s August 8 election was an aberration. It’s Monday’s ruling that restores Kenya’s legal order and jurisprudential status quo that is the norm.
It conformed to the court’s opinion in the 2013 petition. Look at the triumph of form and procedure in the history of Kenyan jurisprudence and you will get my point. Kenyan courts have historically been either moronic or open handmaidens of the Executive. I hope Monday’s ruling doesn’t chill the brave and astute cadre of High Court judges who see the law as a dynamic tool for social change. The Supreme Court has abandoned them.
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I am disappointed, though not surprised. In a young post-colonial state ruled by a kleptocracy like Kenya, the Executive bestrides the earth like a colossus. The State is an ogre bent on the consumption — sometimes literally — of humans. Like an abusive, possessive, and megalomaniacal husband, the State stamps out any whiff of independence.
It goes after the Judiciary with fangs bared, as it did after the September 1 ruling. It constricts civic space, as it has done by trying to choke off NGOs. In such a state, only the Judiciary stands between the people and the tyranny of the State. That’s why hope for legal redress is lost when the Judiciary buckles. Then people turn to civil disobedience and boycotts.
The Supreme Court swung and missed wide on Monday. It should’ve read the petition against Mr Kenyatta as an opportunity to grow democracy. It blinked instead. It was flatly wrong — in law and fact — to rule that the October 26 election was free and fair. First, the IEBC itself — through chairman Wafula Chebukati — had said that it couldn’t conduct a free and fair election.
It was only after Mr Kenyatta summoned a scared-looking Mr Chebukati that he proceeded with the shambolic election. Earlier, heroic IEBC commissioner Roselyn Akombe quit and fled, fearing for her life. She has since exposed the level of capture of the IEBC by Jubilee. How can such a body conduct a legitimate poll?
A free and fair election must be competitive. An election that’s not competitive can’t be free and fair. The withdrawal of Nasa’s Raila Odinga and Kalonzo Musyoka — until a credible process could be agreed — rendered the election nugatory. Imagine a US election that was boycotted by either the Democrats or Republicans. Anyone elected after the boycott would be totally illegitimate.
In my view, this is the single most important calamity facing Mr Kenyatta — his democratic deficit. He’s been declared legally elected, but he’s illegitimate. The Supreme Court must see itself as an instrument of substantive justice and an embodiment of the people’s sovereignty if it intends to fulfil the role envisaged in the Constitution. It’s not a tool for inter-elite politics. In a young state, the highest court is a nation-builder. Look at the Constitutional Court of South Africa. Or even the US Supreme Court at the dawn of the republic.
They were instrumental in shaping the State. Unfortunately, the same can’t be said of the Supreme Court. Justice David Maraga and his fellow judges should step out of the prison of legal paganism and embrace the dynamic, people-oriented jurisprudence imagined in the 2010 Constitution. They robbed Kenyans of sovereignty on Monday — and stamped illegitimacy.
- The writer is SUNY Distinguished Professor at SUNY Buffalo Law School and chair of KHRC. @makaumutua.