By KIRIRI WA NGUGI
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In giving itself 21 days to deliver its full majority judgment on the August 8 presidential election petition, the Supreme Court made a huge mistake.
Events, comments and reactions that should have been pegged on the ruling have, inevitably, rolled on — to the detriment of the true value of the court’s logic for nullifying the declaration of Uhuru Kenyatta as the duly elected President.
The Independent Electoral and Boundaries Commission (IEBC) must conduct a fresh election within 60 days of the nullification.
This is a constitutional demand, not merely a court order.
The 21-day deadline the court arbitrarily gave itself cannot be discounted from the 60.
The time within which to conduct fresh presidential election started to run on Friday, September 1, the day the ruling was made.
IEBC chairman Wafula Chebukati has acknowledged having written a leaked memo — which discloses a list of shortcomings that he wants addressed — to his CEO, Mr Ezra Chiloba.
Such a list should have been provided by the court in a summary at the point when they nullified the IEBC’s declaration.
But the court lacked such simple wisdom.
The ‘Chebukati Memo’ echoes the petitioner’s case — which might explain why the Nasa coalition, the petitioner, has spared the IEBC chairman the kind of vitriol and demand for removal that it has directed at the CEO and others.
It is also in perfect harmony with, and purports to cure, the so-called “irregularities and illegalities” the nullification was based on.
Thus the train has already left the station and, thanks to the lack of wisdom and protection of huge public interest by the Bench, any further reasons the Supreme Court might offer in the full judgment might become superfluous, laying grounds for yet another petition.
There are other problems.
When the court allowed the petitioner’s application for more information from the IEBC, the purpose of this “discovery” was to give the applicant an opportunity to buttress their case.
That is usually by way of further affidavits incorporating new information but without introducing issues and evidence not already pleaded in the suit.
The respondents are then given full opportunity to rebut whatever the petitioner has brought forward from the discovery process.
But this did not happen. Instead, the court established its own inquisition headed by the Registrar of the Supreme Court, whose report was then admitted into the proceedings and the parties given 15 minutes each to “comment” on it.
That was irregular. The court appeared to enter the arena not as an arbitrator but an active prosecutor and judge of their own backroom inquisition.
Now it turns out to any keen observer that whatever logic and specific details of “irregularities and illegalities” (as disclosed by the ‘Chebukati Memo’) that were applied to arrive at the decision to nullify the election of President Kenyatta are resident not in the pleadings and submissions in the courtroom but, specifically, in the registrar’s report. That would be expressly illegal!
But the most grotesque narrative coming out of the ruling is the contention that this court has established new jurisprudence, which Kenyans should be proud to have. Nothing can be farther from the truth.
Let’s start from a simple observation. All articles of the Constitution are not equal; some have more weight than others.
This is illustrated in Article 255, which lists the so-called “entrenched” provisions that require a public referendum to amend — precisely because they are deemed more critical than others.
But the most important, cornerstone and critical article is set out at the very beginning, Article 1: Sovereignty of the people.
To the extent that each vote represents the sovereign will of the people, irregularities and illegalities disclosed in an electoral system or process must be translated into impact on the vote count.
Such impact must be demonstrably manifest and proven in a petition seeking to nullify an election. That did not happen.
The court ordered a fresh poll when the physical ballots of the previous poll were available.
It subordinated Article 1 to lesser animals of the Constitution and thereby subverted and violated our Supreme Law.
The only remedy, which I strongly recommend, is to amend the Constitution and establish provisions for “Legislative Judgments” (like in India) as a way of correcting mistakes in Supreme Court decisions.
That way, we shall rid ourselves of this monstrous precedent under which viable functional presidential elections are now near impossible.
Mr Ngugi is a consultant in public affairs and policy. [email protected].