When does public interest override an individual’s?

As a nation and a people, we must respect court decisions; after all, ours is a democratic country governed by a Constitution vested by the people with three pillars: Legislature, Judiciary and the Executive.

We, however, have a right to disagree with a court’s decisions although the cure of any misjudgements is the Judiciary.

This is the reason for having different rankings of courts comprising magistrate courts, high courts, Court of Appeal and the soon-to-be-established Supreme Court.

We expect the judges to base their rulings on facts, the law and established jurisprudence legal guidance as well as compelling public interest considerations.

Raising outrage

This begs the question: when does an individual’s interest override public interest, or does such a scenario ever arise?

This must become a crucial debatable factor following the High Court’s decision to stop the Kamukunji by-election on account of nomination and non-acceptance of nomination papers by the Interim Independent Electorate Commission (IIEC). Yes, the decision by Justice Daniel Musinga has and was bound to raise outrage, given the high political stakes.

What, then, are the lessons?

Firstly, we must now brace for an accelerated electoral law and judicial reforms free from political parties battles, this, time round, Justice Musinga’s ruling must act as a catalyst, but cannot be the reason.

We must carry out a comprehensive review of all election related laws, processes and systems, in order to guarantee fair and credible elections.

political temperatures

An essential element of electoral reforms is the vetting and nominations of the chairman and commissioners to the soon-to-be-formed Independent Electoral and Boundaries Commission (IEBC), which will take over the duties of the IIEC.

It is essential to reiterate that electoral reforms are not a matter of political contest, but collective national interest.

True, amid the current rising political temperatures are restless people afraid of the consequences of yet another muddled General Election, should that happen, in 2012.

It is Kenyans’ expectation that the political class would this time round converge their interests in pursuit of national interest.

We must ensure sufficient safeguards in the legal regime to prevent busybodies from wasting court time, of judges making decisions that do not satisfy public interest.

Secondly, whilst this column disagrees with the ruling of Justice Musinga, the political class, the Kamukunji electorate, and we must give reason a chance and allow the matter to be settled in a higher court.

At face value, the judgement appears to be in conflict with both public and political interests.

Why? The timing of the decision, coming only 48 hours before the by-election, has certainly forced everyone to question the appropriateness of existing electoral laws and related safeguards.

Worse still, a judgement that has a bearing on fundamental public interest coming on a Friday, when elections were to be held yesterday served only, to frustrate electoral reforms because millions of shillings in public funds have been spent that now constitute sunk costs.

Thirdly, in view of the operations of our courts, currently any appeal can only be lodged on a working day, as the court does not sit on weekends and public holidays.

Socio-political impact

Why can’t our courts sit during weekends, if it is demonstrated that public interest is at stake? Where is the guidance? Does it mean a Judge can tomorrow stop a national election 48 hours to the date and order someone’s name to be included in ballot papers?

One, thing is clear: the consequences, in terms of economic cost and socio-political impact, would be unimaginable. Thus, whilst there might be circumstances where individual interest becomes an overriding factor, every judge confronted with such a scenario is expected, nevertheless, to weigh such interests with those of the public, informed by the circumstance and the law.

Was the Kamukunji electorate likely to be deprived of representation in Parliament if the by-election had continued? Must every individual entitled to represent Kamukunji, be in the contest at all costs? Having caused postponement of the by-election, can he now win to prove he is the people’s choice?

Overriding factor

Finally, while disagreeing with, but respecting the judge’s decision, it is the opinion of Public Watchdog that public interest has not been severed in the postponement of Kamukunji by-election.

The constitutional rights of the people of Kamukunji to elect a representative must become an overriding factor to an individual’s right to seek to be their representative in Parliament.

Thus, in our opinion, an individual’s rights overrides public interest only where the people themselves, in a significant numbers — and constituting a large population of registered voters — petition and demonstrate to the court that their democratic right to elect a particular candidate has been undermined.

We, therefore, opine that an individual’s right to seek an elective position must be secondary to the electorate’s rights to continue with the election of a representative, where they have choices, this being a matter of compelling public interest!

—Comments and suggestions to
[email protected]