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Who’ll give us the unwritten stories of the court’s ruling?

Saturday September 23 2017
COURTPIC

Kenyan Supreme Court judges, from left to right: Justice Njoki Ndung’u, Deputy Chief Justice Philomena Mwilu, Chief Justice David Maraga, Prof Jackton Ojwang and Justice Isaac Lenaola. PHOTO | JEFF ANGOTE | NATION

By MUTHONI WANYEKI

The week’s news was dominated by reporting on the full Supreme Court ruling and reactions to the same.

That the best article I’ve seen on the ruling—going to the heart of the questions asked by the Supreme Court—was in the British newspaper The Guardian is telling about the battle over the narrative within our own media houses.

Some have resorted to the “balancing” tactic of giving lawyers on both sides of the political divide the space to expound on the ruling’s merits and demerits.

Others have repeated—uncritically—the implausible claims made in one of the dissenting opinions, made solely to give the propaganda around the ruling a semblance of legal gravitas.

What few media houses have done is provide, first, in a comprehensive way, the public with a summary of the ruling.

Second, continuous, evidence-based and objective assessments of all the claims and counter-claims about the ruling being made by politicians.

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What the above, shows, however, is that most of our media houses have yet to find a way to cut through the noise.

Yes, we know ownership shapes the slant of any media house. Yes, we know that editors, producers, reporters have their own political preferences that will tend to show through.

And yes, some of these media people are entirely uninfluenced by the filthy lucre of money thrust upon them by political propagandists.

That said, however, fact-checking is important. So is being critical about ludicrous assertions.

Stories could, for example, be done around how the Supreme Court justices handled the legal principles at stake.

Nothing surprising as concerns the burden and standard of proof. Or even the re-visit of the meaning of “votes cast.”

But a significant departure as concerns when an election can be voided—by reading the relevant conditions in a disjunctive rather than conjunctive way.

Either when not in accordance with the Constitution and the law. Or when result affected.

Stories could also be done on the facts of the case. See, for example, the tantalising sub-titles of this part of the ruling. “The mystery of the Forms 34A and the conundrum of electronic transmission” was one such sub-title.

The other concerns the security features we had all been told would make it impossible to fake our ballot papers: “Security features: now you see them, now you see them not.”

As concerns the facts of the case, the ruling reiterated the findings of the two court-ordered and party-observed scrutinies into the Forms and the IT architecture: Which revealed the August declaration was made before the electoral management body was in receipt of no less than a missing 11,883 Forms 34A—representing about 3.5 million votes.

So again, no surprises there. But what the Supreme Court has left us with is a range of pointed questions for investigative reporter worth her or his salt.

What it in fact termed “a puzzle of labyrinthine proportions” in terms of why all this happened. Not to mention who was individually responsible for the ‘systemic, institutional problem’ the Supreme Court highlighted.

L. Muthoni Wanyeki is the Africa director for the Open Society Foundations Network based in London, the UK. This column is written in her personal capacity.

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