Key lessons from Kenya’s Supreme Court judgment

“A JUDGE is not supposed to know anything about the facts of life until they have been presented to him in evidence”. (Herbert Lister Parker, Lord Chef Justice of England, (1990 – 72).

A good story to fit the above sensational quotation, has effectively been told by the outcome of the Presidential election petition filed by Raila Odinga and Martha Karua as 1st Petitioners, together with the six other Petitioners, plus their combined battalion of advocates; who had got together to challenge William Ruto’s success in Kenya’s 2022 Presidential election. At the time when he went to court, the lead Petitioner Raila Odinga confidently declared thus:-

“Yule Mwenyekiti wa Tume ya Uchaguzi amepindua matokeo na kujitenge na wenzake. Hatutakubali mtu mmoja ajaribu kuleta vurugu kwa kubadilisha kile kilichoamuliwa na Wakenya”.

And this would appear to have been the common opinion among very many observers of that episode; who anchored their arguments for nullification of the disputed results on the dissent expressed by the four Independent Electoral and Boundaries Commission (IEBC) commissioners.

But not the Judges of Kenya’s Supreme Court, who, in apparent confirmation of the statement quoted above, “they were not supposed to know anything about these ‘facts of life’, until they had been presented to them in evidence”.

The Supreme Court had consolidated all the seven separate petitions into one petition; having realized that they substantially raised similar issues, and were seeking similar reliefs.

Thus, in their unanimous judgment delivered on 5th September, 2022; the Supreme Court judges made the following orders:-

“(i) that the consolidated Presidential election petition of 2022, is hereby dismissed.

(ii) As a consequence, we declare the election of the 1st Respondent, William Ruto as President-elect, to be valid under article 140 (3) of the Constitution of Kenya.

(iii) This being a public interest matter, we order that each party shall bear their costs”. In their preliminary remarks, the Justices briefly referred to Kenya’s electoral history, and pointed out that “every cycle of elections in recent years has been highly contested.

This speaks to a background of distrust in the administration of our electoral process . . . The reactions following the declaration of results of the August 2022 Presidential election shows that the IEBC has not yet garnered universal public confidence and trust, in the internal management of the commission, and of the elections”. The imperative of evidence in the courts.

The ‘principle’ that is implied in the basic quotation, upon which we are building this story, seems to emphasize the imperative of evidence in settling disputes in the Law courts.

As the ‘learned brothers and sisters’ of the legal fraternity will tell you, the purpose of calling evidence is to enable the court to prove whether, or not, the alleged facts are true.

According the Longman Dictionary of Law, ‘evidence’ is the kind of information that demonstrates, makes clear, or ascertains the truth of the very fact or point in issue”. And further clarifies that the courts have been given power to ‘control’ evidence, by giving directions as to the issues regarding which it requires evidence, and the nature of the evidence which it requires in order to decide those issues.

Thus, based on that power of control of evidence; In the instant case of Kenya’s 2022 Presidential election petition, the Supreme Court had identified nine specific issues for determination; which may be accessed in the said judgment.

The Supreme Court had carefully considered and deliberated upon each of those issues, and made their decision thereon. In every case, the court’s finding was that ‘no credible evidence had been presented”, which would convince the court that the allegations had been proved to the required standard of “beyond reasonable doubt”.

Their judgment also disclosed, in its paragraph 54, that the last minute denunciation of the verification and tallying process by four of the commissioners, who rejected the results on grounds of opaqueness of that process; “ was the core issue that all the petitioners had anchored their arguments for the nullification of the Presidential election, contending that “this action had called into question the credibility of the entire process”; and arguing that a dysfunctional commission cannot deliver a credible election.

But this great expectation” was totally frustrated when the Supreme Court dismissed it, and sarcastically asked these questions: “Are we to nullify an election on the basis of a last minute ‘boardroom rapture’ (the details of which are scanty and contradictory) between the Chairperson of the commission and some of its members?

In the absence of any evidence of violation of the constitution and our electoral laws, how can we upset an election in which the people have participated without hindrance as they make their political choice, pursuant to article 38 of the constitution?.

To do so, would be tantamount to subjecting the sovereign will of the Kenya people to the quorum antics of the IEBC. This, we cannot do. Clearly, the current dysfunctionality at the commission impugns the state of its corporate governance; but does not affect the conduct of the election itself.”

Our lead quotation asserts that: “a judge is not supposed to know anything about the facts of life, until they have been presented to him in evidence” was thus easily confirmed by the Supreme Court Judges, when the said ‘great expectations’ (that that had been confidently expressed in Raila Odinga’s statement quoted above, that “Yule Mwenyekiti alijitenga na wenzake, akapindua matokeo na kubadilisha kile kilichokuwa kimeamuliwa na Wakenya”; plus the associated petitions filed by the seven petitioners against William Ruto’s declared victory); were totally frustrated by the dismissal of their petition; presumably because, even though the Judges are part of the society in which they live; “they were not supposed to know anything about the (disputed) facts of life, until they have been presented to them in credible evidence.

Kudos to Kenya’s Supreme court. The Kenya constitution prescribes pretty hard deadlines for the handling of Presidential election petitions by the Supreme Court; which allows that court only fourteen days within which to hear and determine any such petition or petitions.

In this case, the Supreme court was required to deal with a total of seven petitions, with multiple volumes of evidence; and the parties had to be given sufficient opportunity to ventilate their cases.

But all of that was ‘done and dusted’ well within that deadline; which was highly commendable. Other lessons from Kenya’s management of election disputes. In my last week’s presentation in this column, I expressed what I considered to be another useful lesson for all stakeholders, to be learnt from Kenya’s 2022 Presidential election; which was that “It is not voting that is democracy; it is rather the counting and tallying of votes”.

If we may now return to this matter of ‘lessons from Kenya’s 2022 election’; we can identify some additional ‘lessons’ which are to be found in the proceedings, and in the judgment, of the Presidential election petition discussed in the paragraphs above; and which I would list as follows:-

(i) The negative role that ethnicity plays in Kenya’s politics.

(ii) The positive use of the Law courts in settling Presidential election disputes. (iii)

The huge costs of Presidential election petitions. These points are elaborated in the paragraphs which follow below.

(i) The negative role of ethnicity in politics. Kenya has a bad history of post-election unrest; and, in particular, the fatal violence which suddenly erupted in the disputes arising from the 2007 Presidential election, in which more than a thousand persons were reported to have been killed, and many more others displaced from their homes; which is generally believed to have been caused by the intense political rivalry between the two largest and politically dominant ethnic groups, with each of the competing candidates belonging to one or the other of these two groups.

The mayhem was initiated by followers of the group which had lost that election. This, then, is the ‘oversized’ role which ethnicity has played in Kenya’s politics; which made most people in Kenya, and elsewhere, genuinely apprehensive that since the group’s candidate was the same Raila Odinga; similar violence might erupt if he lost again.

And because the election campaign was dominated by acrimony and mudslinging; many observers feared that the dispute over the results would boil over into violence. But, by the grace of God, and the political maturity of that group; no violence of any kind has occurred. Ethnicity plays no role whatsoever in the politics of Tanzania, which could be a good lesson for others to learn. We therefore have every reason to dedicate ourselves to maintaining this blessed state of affairs.

(ii) The positive use of the Law Courts to settle Presidential election disputes. It is indeed most unfortunate, that Tanzania’s constitution prohibits the use of the court system in settling Presidential election disputes. This undesirable constitutional restraint was ‘unconsciously’ inherited from the one-party system of governance of yester years; which we totally failed to give proper thought or consideration at the time of the transition to the multiparty system in 1992.

Understandably though, since there was no competitor who could lose a Presidential election and thus be motivated to challenge the results in court, making provision for such challenges would be absolutely meaningless. But this fact was overlooked at the time of the transition to multi-party politics. However, since we now have the draft of a “new” constitution that was approved by the relevant Constituent Assembly in 2004, which fortunately provides the required remedy to this deficiency, there is no reason for continuing to ‘cry over spilt milk’.

One other important lesson we should learn from Kenya’s Supreme Court performance, is the need for our constitution to establish a ‘Supreme Court’ in our Judicial structure; vested with powers similar to Kenya’s Supreme Court, in respect of Presidential election petitions.

(iv) The huge costs of Presidential election petitions. In view of the extra-large contingent of senior advocates who were engaged by both the petitioners and the respondents in the 2022 Kenya Presidential election petitions; the cost was obviously bound to be huge.

But that consideration apart, in this particular case there was the additional cost to the government of Kenya, arising from necessary expenditures relating to hosting the visit by a high-level panel of African eminent jurists, who were invited from the superior courts of Tanzania; South Africa; Lesotho; Zimbabwe, Botswana; Uganda; and Malawi; led by Tanzania’s retired Chief Justice Mohamed Chande Othman.

These eminent jurists were invited for the purpose of attending the hearings of the Presidential election petitions, to monitor and document the experience, possibly for the benefit of other African countries. Such costs would obviously have been totally unnecessary in a one-party Presidential election, in which there was only one candidate, for whom the voters were required to indicate their choice by voting ‘YES’ or ‘NO’, as the case may be.

This is what lamely explains the omission in the one-party constitution of the provision for challenging Presidential election results in court; but it highlights the grave mistake of blindly carrying that restriction over into the current multi-party constitution.

Hence, kudos to our constitution makers of recent times, who have included this vital provision in the proposed new constitution, that was adopted by the Constituent Assembly in 2014.

piomsekwa@gmail.co 0754767576.

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