By Walter Khobe
On 18th August 2017, Raila Odinga and Kalonzo Musyoka filed a petition before the Supreme Court challenging the declaration of Uhuru Kenyatta as duly re-elected President of Kenya in the 8th August 2017 elections. In Presidential Election Petition, Number 1 of 2017, the Petitioners allege that the 2017 elections were seriously compromised thus the declaration of the results by the Independent Electoral and Boundaries Commission (IEBC) does not reflect the will of people.
By going to court, the NASA leaders reversed their earlier stand that the courts were not an option in resolving their grievances given that they lacked faith in the Supreme Court going by that court’s handling of the 2013 presidential election petition challenging the outcome of the 2013 election when Uhuru Kenyatta was elected for his first term as president. In reversing this stand the NASA leaders noted:
“Even as we go to court, we are cognizant of the fact that ever since Uhuru Kenyatta and William Ruto publicly warned the Judiciary, the IEBC has not lost a single case in court. We have decided to move to the Supreme Court despite the history and other recent circumstances. In similar circumstances in 2013, we moved to the Supreme Court to challenge the declaration by IEBC of Uhuru as President-elect.
The manner in which the court handled that petition was a travesty of justice. The court decided all interim applications in favour of Kenyatta. The court also allowed the counter petition filed in favour of Kenyatta but disallowed the two petitions against him. Uhuru won 100 per cent and we lost 100 per cent in court.
Our decision to go to court constitutes a second chance for the Supreme Court. The court can use this chance to redeem itself, or, like in 2013, it can compound the problems we face as a country.”
The concern by NASA leaders about the ability of the judges of the Supreme Court is not farfetched. The Supreme Court has failed to capture public imagination largely because of the unanimous verdict by observers that the court failed to display any semblance of intellectual heft in adjudication of the 2013 petition.
It was expected that with the revolutionary textually expressed values and principles of the 2010 Constitution, the court would display doctrinal innovation and creativity in adjudication of a dispute that goes to the core of the aspiration of Kenya being a democratic state. The unanimous verdict by observers is that the Court failed. Where one expected the Supreme Court to chart a new jurisprudential path based on the post-2010 grundnorm –the values and principles of the Constitution- and ignore the Common Law, like the South African Constitutional Court did in Kham and Others v Electoral Commission and Another, (CCT64/15)  ZACC 37, where that court rendered itself thus on post-1994 electoral disputes adjudication:
“ In many countries,..the only ground for setting aside an election is proof that the exclusion of votes tainted by irregularity would mean that the result of the election could have been different. That was the basis upon which electoral petitions were disposed of under the pre democratic dispensation, drawing upon precedents in electoral law from England. The Court’s sole task was to determine whether the irregularities would have affected the result of the election. In doing so it would examine and rule on disputed votes and then re-count the votes to see whether the outcome would have been any different. It is the basis for what is referred to in Canada as the “magic number” test, that being the number of irregular votes that a claimant must prove were admitted in order to have the result of an election set aside. But in South Africa that cannot be the sole determinant of just and equitable relief, where the elections conducted by the IEC were not free and fair and the constitutional right to participate in and contest those elections was infringed. In any event it is always difficult to predict what would have occurred had those electoral irregularities been absent.”
In contrast, the Supreme Court of Kenya borrowed discredited Common Law doctrines from courts in dictatorial regimes in Uganda and Nigeria while ignoring the values and principles of the 2010 Constitution. By blindly adopting common law doctrines, the court failed the Kenyan people. This is not to say that court should have found for the petitioners. No! It is to say that the Court should display a semblance of intellectual firepower in its reasoning. Not presenting the nation with “something” that looks like an essay by an average third year LLB student as a judgment from the apex court.
The Petitioners’ Case
First, the petitioners allege that the declaration by the Chairman of IEBC, Wafula Chebukati, that President Kenyatta had garnered 8,203,290 votes (54.2 per cent) against Mr Odinga’s 6,762,224 votes (44.7 per cent) is untenable due to various violations of the Constitution and electoral law.
Second, the petitioners question the veracity of the numbers emerging from the presidential election. They allege that there were numerous instances in which votes were deducted from their ticket and added to Uhuru Kenyatta, who was declared winner.
Third, the petitioners allege that the declaration of result forms had errors. They claim that the errors range from unsigned documents, or the name of one presiding officer being shown as the official in charge of elections in multiple stations at the same time.
Fourth, the petitioners claim that there are 443 instances of ungazetted polling stations. Further, that there are election results forms that had been filled out in the same handwriting, and forms that have a polling station, names and details of agents as well as their signatures but were blank in spaces meant to show results.
Fifth, the petitioners allege that the IEBC violated the law and the decision of the Court of Appeal in the Maina Kiai Case that required a number of things to be done, including voting, electronic transmission of results, by image and text to tallying centre, and the display of results in a public portal that is accountable, verifiable and accurate. The Petitioners allege that the IEBC flouted these principles and wants this used to nullify the results of the elections.
Sixth, the petitioners allege that at the time of announcing the final results, the IEBC did not have result forms for 11,883 polling stations.
Seventh, the petitioners allege that the Jubilee party violated electoral laws by using public funds and resources in campaigns, using public servants to campaign, and violating section 14 of the Elections Act that bars the advertising of government’s accomplishments as an achievement of a political party.
The Maraga Court in Focus: Jurisprudential Orientations
Chief Justice David Maraga
Chief Justice David Maraga is the President of the Supreme Court and thus will certainly bear the greatest responsibility for the decision. Having been appointed to the Supreme Court in 2016, he did not sit in the much maligned 2013 Raila Odinga Petition.
While one would have reservations about the David Maraga’s ability to break from the Common Law mould and enforce the revolutionary principles and values of the 2010 Constitution. In one area, where he has shown particular ability is the area of electoral justice. He has served as a past chairperson of the Judiciary Committee on Elections and thus would be expected to have profound knowledge of electoral doctrine and comparative jurisprudence in the area of electoral disputes resolution.
During his tenure at the High Court, he rendered the path breaking High Court Election Petition No. 1 of 2005—Hassan Joho v. Hotham Nyange & Others— which is precedent setting on the standard of proof in Election Petitions.
Further, during his tenure at the Court of Appeal, he was part of a three judge bench that rendered the decision in Wetangula v. Kombo & Others, Kisumu CA (Election Petition) No. 43 of 2013— which is precedent setting on nullification of election on grounds of bribery.
He has also published a Book Chapter titled “Scrutiny in Electoral Disputes: A Kenyan Judicial Perspective,” in the Book: ‘Balancing the Scales of Electoral Justice: Resolving Dispute from the 2013 Elections in Kenya and the Emerging Jurisprudence.’ Edited by Dr. Collins Odote and Dr. Linda Musumba; February 2016. This is a further testimony of his expertise in the area of electoral law.
Deputy Chief Justice Philomena Mwilu
Having been appointed to the Supreme Court in 2016, she was not in the bench during the 2013 Raila Odinga Petition thus should offer a new perspective to the bench.
However, it is noteworthy that she has not rendered any profound judgment in the area of electoral justice or any other area of law during her tenure on the bench. One would expect her to be a typical common law judge, thus it will be a pleasant surprise is she offered a path breaking opinion that puts the majestic values and principles of the Constitution ahead of the common law which is the default mode of the average Kenyan judge.
Justice Mohammed Ibrahim
Justice Ibrahim sat in the maligned 2013 Raila Odinga Petition thus would likely continue with the trajectory of that conservative jurisprudence.
He has a stellar record for reform activism prior to joining the bench thus the criticism of the Supreme Court’s failure in 2013 it might be hoped to have pricked his conscious and may see a change of course. However, the other problem is that he appears to be a typical common law judge who lays much emphasis on the common law thus might worship at the altar of the common law and fail to put the values and principles of the Constitution at the centre of decision.
Justice Jackton Ojwang’
Justice Ojwang’ sat in the much ridiculed 2013 Raila Odinga Petition thus would be expected to adhere to the conservative trajectory of that jurisprudence.
Though a fairly able constitutional theorist, his worship of the common law as is evident from his Doctoral Thesis titled “Unity of the Common Law and the Constitution”, this would certainly see him place the common law at the centre of his decision instead of the revolutionary promise of the 2010 Constitution.
Justice Smokin Wanjala
Justice Wanjala was involved in the 2013 Raila Odinga Petition thus would be expected to continue in the path of that laughable decision.
He has not written many separate opinions while on the bench, thus his jurisprudential orientation is still not clear. However, his time as a scholar activist prior to joining the bench offers hope that he can discard the blind allegiance to the common law that prevails amongst the members of the Kenyan legal community and drink from the well of the majestic values and principles of the 2010 Constitution.
Lady Justice Njoki Ndung’u
She was involved in the 2013 Raila Odinga Petition thus she is likely to continue on the path already charted in that infamous decision.
However, to be fair to Justice Ndung’u she has thereafter rendered landmark transformative separate opinion in Evans Odhiambo Kidero & Others v Ferdinand Ndungu Waititu & Others, Petitions No. 18 & 20 of 2014 and in Frederick Otieno Outa v Jared Odoyo Okello & 4 Others, Petition 10 of 2014. Going by these twin opinions, she has the ability to transcend the annoying Kenyan practice of blind adherence to Common Law dictates.
Justice Isaac Lenaola
He was not part of the 2013 Raila Odinga Petition having been appointed to the Supreme Court in 2016. He is thus expected to offer a fresh perspective to the jurisprudence of the Court.
While not in the area of electoral justice, he has rendered landmark decisions in the areas of constitutional structure and human rights thus could probably transfer this transformative trajectory to the area of electoral doctrine.
The Conceptual Hamartia of the Raila Odinga 2013 Election Petition Judgment
In order to divine the future, we must look at the past. This provides justification to revisit the ghost that haunts Kenya’s post-2010 electoral jurisprudence and that will be the centre of focus as the Supreme Court adjudicates the 2017 Raila Odinga and Kalonzo Musyoka Petition – Raila Odinga & 2 Others –v- IEBC and 3 Others, Presidential Election Petitions No. 3, 4, and 5 of 2013 (for theorising on ghosts and ‘hauntology’ in law, see Joe Oloka – Onyango’s professorial inaugural lecture titled ‘Ghosts and the Law’).
Let me make something clear at the outset about the import of this commentary, I come to mourn the impact of the Raila Odinga 2013 judgment on our electoral jurisprudence, not praise it.
It must be borne in mind that in constitutional democracies the judiciary carries an important responsibility for securing the integrity of elections as the main channel of democratic change. John Hart Ely argues in Democracy and Distrust: A Theory of Judicial Review that they do so in two ways: by resolving disputes over the rules (that is, whether the legal framework creates an even playing field for the electoral contest) and by overseeing that the parties stick to the rules throughout the election process. When courts exercise the first function – securing a level playing field – they are rule-evaluating. They decide whether the rules regulating the election process are in accordance with the superior norms and principles laid down in the constitution. When they exercise the second function – securing fair play – they are rule enforcing. They act as referees of the electoral competition with a mandate to decide complaints and sanction violations of laws and regulations in the course of the election process, and ultimately nullify the election results.
On the 4th March, 2013 Kenya went to election, the first one under the 2010 Constitution, hoping to break from a past of fraudulent and violent election history. Disputes arose as to the integrity of the process, especially the failure of technology that had been employed to cure electoral fraud in Kenya. The runner-up candidate Raila Odinga and Africa Centre for Open Governance a non-governmental organisation lodged petitions to the Supreme Court challenging the veracity of the declared results. Three activists of the winning Jubilee coalition lodged a counter petition challenging the IEBC’s computation of the results contending that ‘spoilt votes’ should not be factored in determining the threshold for votes cast. This factual background set the stage for the Supreme Court to determine the three petitions which the court consolidated as: Raila Odinga & 2 Others –v- IEBC and 3 Others, Presidential Election Petitions No. 3, 4, and 5 of 2013.
The Misguided Endorsement of Judicial Restraint as the philosophical approach for Adjudication of Presidential Election Petitions
The Constitution of Kenya establishes the Independent Electoral and Boundaries Commission (IEBC) under Article 88(1) and mandates the same under Article 88(4) with the duties inter alia of conducting elections to any elective body or office established by the Constitution. The Constitution at Article 88(5) provides that the Commission shall exercise its powers and perform its functions in accordance with the Constitution and national legislation. In conducting elections the IEBC is therefore obliged to observe the general principles for the electoral system under Article 81 of the Constitution, the provisions of the Elections Act, No. 24 of 2011 and the Elections (General) Regulations, 2012. In discussing the concept of substantial compliance in electoral process, a holistic approach is adopted in terms of considering the process as a galaxy with declaration of the election results as its central sun.
It is crucial to note that the Constitution provides for a rigorous and progressive framework to ensure a break from Kenya’s dark electoral history. (For a poignant account of Kenya’s dark electoral history see the account by Susanne D. Mueller in ‘The Political Economy of Kenya’s Crisis’). Raila Odinga & 2 Others –v- IEBC and 3 Others, Presidential Election Petitions No. 3, 4, and 5 of 2013 was the first election petition judgment by the Supreme Court under the 2010 Constitution. Thus the Supreme Court was expected to adopt a jurisprudence that advances this transformative vision of the Constitution.
In ruling that the elections were conducted in compliance with the Constitution and the law, the Supreme Court endorsed the principle of judicial restraint in adjudication of electoral disputes. The core argument of this commentary is that there is no basis for this finding and approach by the Court. As Bruce Ackerman has pointed out in ‘We the People: Foundations’, rule evaluation and enforcement, are functions that the judiciary is entrusted with as part of its constitutional mandate and facilitates elections and enhances democracy. This is not necessarily undemocratic, since this aims to protect the people’s most profound long term priorities, laid down in the constitution, against short-sighted decisions taken in the heat of battle. Thus there is no conceptual basis for judicial restraint as the overreaching correct judicial approach in electoral disputes.
The Supreme Court did not provide sufficient reasons for adopting the principle of judicial restraint. The Court’s uncritical reliance on judicial precedent from the United States i.e. Bush v Gore, was unprincipled given that the United States Constitution is a classical minimalist – libertarian model of a Constitution while Kenya’s 2010 Constitution is a ‘value- laden’ transformative (post-war) charter thus envisages robust intervention by courts in the decisions by other branches or organs of government. It is important to point out that the transformative (post-war) constitutionalism that emerged after the Second World War adopts a different model to constitutionalism than the minimalist approach of the pre-war United States Constitution. Though the center of this model remains Europe (specifically Germany) its importance and influence extend much farther, all the way to South America (especially Colombia), India, South Africa, Israel, Canada, Hungary, and now joined by the 2010 Constitution of Kenya. The main traits of post-war constitutionalism that distinguishes it from the American minimalist model are: an expansive scope of rights, anti-textualism and anti-originalism, justification rather than interpretation at the center of the constitutional review, a proportionality test for justification of infringement of rights that applies to all rights rather than discrete tests for each right, and a value-based, policy-oriented, and non-doctrinal style of judicial reasoning. (See generally: Kai Moller ‘The Global Model of Constitutional Rights’; see also David S. Law and Mila Versteeg ‘The Evolution and Ideology of Global Constitutionalism’; See also the wide ranging study by Jacco Bornhoff titled ‘Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse’). Relevant to the present discussion on judicial intervention is the assertion by Sandra Liebenberg in ‘Socio-Economic Rights: Adjudication under a Transformative Constitution’ that transformative adjudication demands a ‘reconceptualised separation of powers’.
Moreover, courts act as referees of the electoral competition with a mandate to decide complaints and sanction violations of laws and regulations in the course of the election process and ultimately nullify the election results. Therefore, unlike in judicial (constitutional) review cases where the courts are thought to act in a counter-majoritarian manner, the Bickelian dilemma does not exist in electoral disputes. In the most celebrated footnote in constitutional theory, the famous footnote four of Carolene Products Case, the Court stated that judicial intervention is uniquely justified and a more exacting strict scrutiny standard of review is called for when legislation or other governmental action seems to obstruct political representation and accountability by distributing the law’s benefits and burdens in ways that show a particular group to have been denied fair representation. This is buttressed by Ronald Dworkin who, building from the work of John Hart Ely, argues in ‘Freedom’s Law’ that judicial scrutiny enhances democracy thus there is no need for the unnecessary restraint that the Supreme Court adopts. The court should intervene to protect the sanctity of the values and principles of the constitution.
In upshot the best rendition of the correct approach to judicial adjudication of electoral disputes remains that by Justice David Majanja in Richard Kalembe Ndile v. Patrick Musimba Mweu  eKLR where the judge underscored the need to give effect to the values and principles of the Constitution by electoral courts thus:
‘Whereas the 1st petitioner emerged with the most votes after the recount, can this court shut its eyes to the evidence that may affect the authenticity of the ballot and say, “Well, the numbers say it all. It is a done deal!” This approach is not consistent with the general principles that underlie a free and fair election. Elections are not about simple arithmetic … They are about embracing standards and values that our Constitution has ordained.’
The Supreme Court’s sin of using the Common Law to subvert the Constitution
Prempeh H. Kwasi in ‘A New Jurisprudence for Africa’ has argued that in Africa’s Common Law jurisdictions, the Common Law and its doctrinal traditions, philosophic underpinnings, and styles of reasoning and interpretation, retain substantial prestige and influence among lawyers and judges, often supplying the default rules and norms for framing and analyzing even constitutional questions. Yet, the Common Law, in its method, substance, and philosophical underpinnings, carries with it elements and tendencies that do not accord with the transformative vision reflected in modern constitutions. Much of the problem stems from the basic constitutional and jurisprudential paradigm upon which English Common Law is built, namely Austinian positivism and Diceyian parliamentary sovereignty……..READ FULL ARTICLE ON THE PLATFORM 2017 SEPTEMBER EDITION