Damned if they do, and damned if they don’t: Judiciary’s dilemma

Monday July 24 2017

Judges of Kenya’s Court of Appeal when they made a ruling, okaying the printing of ballot papers in Dubai. PHOTO FILE | NMG

With two weeks to Kenya’s elections, the Judiciary has come under scrutiny not only for the poll-related cases currently in court, but also its preparedness in dealing with the election petitions that are bound to follow.

Having upheld President Uhuru Kenyatta’s election victory in 2013 after petition by Raila Odinga, all eyes are now trained on the Supreme Court and how it is likely to rule should another petition arise from the presidential election result.

President Kenyatta and his deputy, William Ruto, have added insult to injury with recent attacks on the Judiciary for allegedly “favouring” the opposition National Super Alliance (Nasa) in judgments on election-related petitions.

But the recent Court of Appeal ruling that overturned an earlier High Court decision to allow Dubai-based firm Al-Gurair Printing and Publishing Company to go ahead with the printing of presidential ballot papers seemed to temporarily ease the pressure on the Judiciary.

Chief Justice David Maraga, who is also the chair of the Judiciary Committee on Election Petitions and president of the Supreme Court, has expressed concern that the Judiciary is likely to be overwhelmed by the many petitions expected, since its is lacking in numbers and financial resources.

Justice Maraga lamented that the National Assembly had thwarted several attempts by the Judiciary to increase the number of days for the hearing of presidential petitions from 14 to 30.


READ: Stalemate puts integrity of Kenya elections at stake

During the 11th Parliament, the Judiciary had four times written to MPs to increase the time limit for presidential petition on grounds that the current period is too short, but maintained that Kenya is politically sensitive and not having a sworn-in president in office for 30 days would create instability.

“Despite these challenges, the judges and magistrates are ready; we will have to work hard and fast, even if it involves sitting late hours and over the weekend,” said the CJ at a stakeholders meeting at a Nairobi hotel on July 17.

Justice Maraga added that the Judiciary has met with various agencies concerned with elections and that it is ready to deal with the petitions that will arise, even though he is concerned that they will disrupt the timetable and resolution of other matters, such as commercial disputes.

In 2013, the Supreme Court, led by then Chief Justice Dr Willy Mutunga, threw out Mr Odinga’s 839-page affidavit because it was time-barred.

The opposition, then under the defunct Coalition for Reforms and Democracy (Cord), cried foul, saying that their evidence was thrown out on a technicality.

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But Paul Mwangi, Mr Odinga’s lawyer, told The EastAfrican that the opposition does not think that the 14-day period will be a major challenge this time.

The Judiciary had argued that the Supreme Court has only five days to look at the substance of the presidential petition and make a ruling.

The rest of the days are used for pretrial hearing, exchange of documents between parties and other formalities.

Following the 2013 experience, the Judiciary Committee on Elections (JCE) was born in August 2015 as a standing committee to provide a mechanism to assist the Judiciary to continuously prepare for and discharge its mandate on election disputes resolution.

The JCE chairperson, Justice Mbogholi Msagha, is also concerned that the operations of the judiciary may be impaired because of the lack of funds, because it had asked the Treasury for Ksh1.9 billion ($18.3 million) but only got Ksh200 million ($1.9 million).

The Judiciary is expecting between 400-500 petitions arising from the 2017 election from presidential to gubernatorial, MPs and petitions for the members of County Assembly. There were 187 election disputes the ended in court after the 2013 election.

But the biggest challenge for the judiciary is the recent criticism and threats by President Kenyatta and his Jubilee officials.

READ: IEBC promises credible polling despite legal hurdles

In June, a three-judge Bench Court of Appeal ruled that presidential results declared at the constituency level will be final, after the Independent Electoral and Boundaries Commission had appealed against a similar ruling by the High Court in April that had been filed by Nasa.

Again on July 7, a three-judge High Court Bench nullified the tender that was awarded to Al Ghurair to print the presidential ballot papers, on the grounds that it failed to follow the laid-down procedures.

Immediately, President Kenyatta and Mr Ruto accused the Judiciary of working with the the opposition to have the August 8 polls postponed. This attracted condemnation from opposition who accused Jubilee of trying to intimidate the judiciary ahead of the elections.

READ: Dubai firm to print Kenya's presidential ballot papers