Blog of the International Journal of Constitutional Law

Kenya’s Judiciary Passes Important Test

–James Thuo Gathii, Loyola Law School (reprinted from The Daily Nation)

Only five years ago, Kenya’s Judiciary was not an option that electoral challengers dared consider.  The institution was rife with corruption and ineptitude. There was no public confidence that judges could be neutral arbiters in the most important questions of the day.  The courts suffered such a credibility crisis that denied them public confidence in handling even the most ordinary criminal and civil cases.

This year, the two leading presidential contenders turned and focused their attention on the highest court to offer a determinative decision on the March 2013 election. On both sides of the election petition, politicians promised to abide by the determination of the court. This is a major reversal from five years ago.

In 2008, violence became the outlet for dissatisfaction with the electoral process. Many Kenyans lost lives and even more continue to suffer displacement from their homes and property. Many will continue to suffer physical and mental scars from that ugly period of our history.

That the courts today have become the way to channel political disagreements in the country speaks to the gains made in building the independence and authority of the judicial system. Building the rule of law requires confidence in the judicial system and the entire system of administration of justice including the police and the prisons. The Judiciary has become the fulcrum pulling the various parts of Kenya’s system of administration forward.

This is the context against which the Supreme Court’s handling of the presidential election petition must be seen. Consider how much faith and trust many Kenyans closely following the proceedings placed on the court — that it would give a fair hearing to all sides and make an impartial determination of the case. The proceedings were conducted in accordance with constitutional requirements and procedures put in place by the Supreme Court well before the case began.

The arguments made before the judges were monumental in many ways. Not only were the papers filed massive; they raised significant questions about the entire manner in which the IEBC carried out the election — from its planning, preparation, equipment procurement, conducting the polls, counting the ballots, the transmission of the results to their announcement. The lawyers who challenged the election were prepared and they no doubt raised nitty-gritty legal and factual issues that supported their case. The rebuttal was equally thorough.

What is equally impressive is how the Supreme Court allowed a healthy mix of senior and junior lawyers to address the court. The old Court of Appeal was an arrogant bench. They showed little patience for young talent. They even gave seasoned lawyers especially those they did not agree with a hard time. The old Court of Appeal was heavily associated with paying more attention to rules in the abstract at the expense of the justice behind the cases that came before them.

The current Supreme Court has no such luxury. The 2010 Constitution has no patience for particularities of procedure. That was why it was refreshing to hear lawyers on all sides of the presidential petition constantly refer the Supreme Court to the values enshrined in the Constitution.


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