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What Kenyans should expect from the Supreme Court Judgement

By Sitati Munoko | August 31st 2017

The recent Supreme Court of Kenya (SCOK) hearing of the presidential election petition filed by Raila Odinga challenging the election of Uhuru Kenyatta as President was like a theatre to many. We saw the good, the bad and the ugly of it.

The learned friends engaged in legal tussle of facts and the law to convince the court to decide in their favour. In law we always say that clients come and go but as advocates remain. We always fight and exchange harsh words in courtrooms but wine and dine together outside. Some clients abhor seeing us as colleagues chatting with their opponent’s advocate.

But all people still remember the poetic sentiments of PLO Lumumba with his de minimis non curat lex (of small things the law knows no cure). He appeared to dismantle the Petition equating the nullification of the election to the strangulation of a well delivered baby.

That aside, what should we expect from the SCOK decision? Bearing in mind that the Supreme Court is an equanimity of an anomalous number of seven judges as required by the Constitution, the majority decision should be of four judges and above.

First, the judges can give a unanimous decision either upholding the election of Uhuru Kenyantta or nullifying it. In this case, if all the judges agree, they can allow one of them to write the decision and the rest approve it.

Two, the judges at a sitting can differ as to whether the election was free and fair. In this case, those who uphold the election will write their own decision and those who think otherwise, will also write theirs. In this scenario, the decision of the majority of the seven judges will carry the day either upholding the election or nullifying it.

Third, given that one of the judges, Justice Ibrahim Mohammed was unwell, the bench may constitute six judges. Though we wish him quick recovery. But what if he’s not recovered? Judgement must be delivered anyway by the six judges.

What then happens if the six judges tie in their decision at three upholding the election and three nullifying it? The law dictates that the petition fails and the election of President –elect, Uhuru Kenyatta should be upheld since majority of the judges were not convinced by the petition. This’ when you realize Charles Dickens’ sentiments that the law is an ass.

Fourth, each judge can decide to write his or her own decision giving reasons as to why he or she upholds or nullifies the elections. In this case, the judges can read each other’s’ decision and those agreeing with one or several of them can also write a brief agreeing on either.

Fifth, as the alternative if the judges are writing a unanimous decision, they can split the judgement into several parts like analysis of facts, evidence, law and comparative analysis of the authorities cited and those they have. Then each judge will read his or her part but as one unanimous decision.

Whichever be the case, the decision of the judges must be well reasoned and justiciable though may not please both sides. The opposition has said that they do not want a two minute decision like 2013. But if it is in their favour, I think they won’t mind a one minute ruling.

But my sole expectation is that, the judges should not again miss the opportune moment of recommending for the amendment of article 140(2) of the Constitution to change the hearing period of presidential petition from fourteen to thirty days after filing. This will ease pressure on both the bench and the bar. The Supreme Court of Uganda’ recommendation in the 2006 petition between Kizza Besigye and Yowery Museveni led to amendment of their Constitution

The people of Kenya should exercise sobriety after the decision. It may be a blow and emotional to the loser but life must continue. This should usher us to the next level of national reconciliation and healing.

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