When the justices of the Supreme Court of Kenya first delivered the lean decision on September 1 — with a majority of four judges against two in dissent — in which they declared that the presidential election held on August 8, 2017 had been irregular, null and void, the shock and awe that took the country led to the question, why?
Those enthused by the majority decision sought to know the main reasons for that decision to give themselves a reason for celebration.
Those who found themselves on the wrong side of the majority decision waited for the detailed reasons to find out if they were sufficient to justify the judgement, in the hope that they would give them grounds to for derision at the decision.
The country’s electoral body Independent Electoral and Boundaries Commission (IEBC) may have been the only party involved in that court case that had a professional need to know the real reasons for the decision.
This is because the IEBC needed to know where the court had found it to have made missteps that led to the nullification.
On Wednesday, September 20, all these sides finally got the reasoned decisions, when the court sat for almost 11 hours.
The reasoned decision did not disappoint, and for different reasons.
First, three of the judges in the majority — Chief Justice David Maraga, his deputy Philomena Mwilu and Justice Isaac Lenaola read their joint decision in turns for themselves and on behalf of Justice Smokin Wanjala, who had travelled but had signed the majority decision by which the election was annulled.
The detailed reasons for the majority decision were that, among other things, the IEBC had presided over a systematic and systemic failure in conducting the elections, with the result that the results were transmitted contrary to the strict requirement that the physical forms in which they are recorded at the polling stations be scanned, signed and submitted simultaneously through electronic means.
They found that there were certain departures from this requirement ,which rendered the final results projected by the IEBC suspect.
Another important finding was that the chairman of the IEBC, as the national returning officer for the presidential election, appeared to have declared results without and or before receiving all the forms required from the polling stations — the now famous Forms 34A.
Equally disconcerting to the majority judges was the curious fact that some of the requisite forms had security features while others did not, giving credence to the claims that the forms may have been forged.
The majority judges were also taken aback by what they considered contumacious disobedience of the order the court had given for the IEBC to permit access to its servers for the purposes of, among other things, ascertaining the claims by the petitioner of hacking.
The refusal and or failure of the IEBC to permit access led the court to a conclusion that there was something untoward within those servers and led to the decision to resolve the doubts in favour of the petitioner and hence the decision that the results of the election were unreliable.
It needs to be said, however, that the petitioners did not get every order they sought from the court.
Of particular interest was the claim that the president and or some Cabinet secretaries had committed election offences by campaigning under the guise of undertaking government projects and functions.
Some Cabinet secretaries were said to have openly campaigned for the president, contrary to the Constitution, which requires that they keep off political actions.
The petitioner had also claimed that the president had used government funds, claiming to be providing compensation to victims of the 2007-2008 post-election violence, when the main reason was to campaign for his re-election.
Another claim was that the Executive had unleashed an aggressive campaign in media advertisements, supposedly providing information to the public on its performance on some development projects.
The objective of this, the petitioner claimed, was to use government funds to campaign for the incumbent. On this claim, the majority ruled that the petitioners had not provided evidence.
My view of the tone of the court on this issue is that it may well have been sending a shot across the bow for the Executive by stating that had the evidence been adduced to its satisfaction it may well have nullified the election on this ground.
The majority decision concluded with the reiteration of the strong and possibly enduring words to the effect that “the greatness of a nation will not lie in the strength of its armies or the depth of its economy but in its fidelity to the law and fear of God.”
Not far-reaching words have ever been expressed by a judge in Kenya – barring, maybe, those of Chief Justice C. B. Madan in the case of Stanley Githunguri, in which he told Mr Githunguri, after dismissal of an attempt at prosecution despite previous assurances by the Attorney-General that he would not be prosecuted.
“Stanley Munga Githunguri! You have been beseeching the court for Order of Prohibition. Take the order. This court gives it to you. When you leave here, raise your eyes up unto the hills.
“Utter a prayer of thankfulness that your fundamental rights are protected under the judicial system of Kenya,” Justice Madan said.
Warning to the IEBC
Equally fervent was the majority’s warning to the IEBC — to ensure that it conducted the ensuing election in strict conformity with the law — to avoid similar challenges, for the judges were clear that they would not hesitate to nullify any future elections if similar infractions were repeated.
The judges also made it clear that the arguments to the effect that the challenges to the election were merely on the transmission methods and, therefore, merely of process did not resonate with them.
In other words, the compliance with all constitutional requirements, process was equally important.
In summary, therefore, the majority decision sends the message to Kenyans that there stands a court which will uphold rights and look down all institutions and persons within the country when the Constitution calls on it to do so.
While dissenting opinions are often of no significance to the ultimate decision, they form interesting perspectives for consideration in teaching of legal reasoning in law schools.
The two judges in dissent did not disappoint. I have no doubt that the dissenting opinions will be of historical significance in any view of the majority decision, though for different reasons.
The two judges in dissent contended that the petitioner had not proved the complaints of irregularities or illegalities to the requisite standard. Insufficient evidence is often the starting block for a judge declining to grant a claim.
However, Professor Justice Ojwang’s dissent put out the great essence of a scholar judge.
His reasoned opinion was engaging in the depth of its scholarly interposition of the legal issues at hand, with explanations as to why he saw the issues differently, all clothed in legal theory and in very distinguished scholarly language.
This dissenting opinion will form the basis for many judges, advocates and legal scholars for many years to come on the quality, even if it will be of no legal significance in the case.
Justice Njoki Ndung’u’s dissent will also stand out in history but for a different reason: At 440 pages, it probably is the longest dissent in any case in the Common Law the world over.
Standing against the majority opinion of 178 pages and Prof Ojwang’s dissent of 91 pages, the tone by Justice Ndung’u also stands to interest legal historians for that reason.
It reminded me of what is said to be the most influential dissenting opinion ever in the US Supreme Court: Oliver Wendell Holme’s solo dissent in the 1905 Supreme Court case of Lochner vs New York, which came in two paragraphs!
Nevertheless it remains greatly influential as a dissent and is today considered by judges and scholars to have been right in legal principle as opposed to the majority.
Collegiality of the judges
Aside from the foregoing, the decisions and the manner in which they were delivered leave one wondering whether the collegiality of the judges of the Supreme Court of Kenya is where it should be.
At times, it appeared that some of them were invested in the case at hand as if they were the advocates for the litigants.
There was just a lack of dispassionate adjudication that would be expected of a judge — at least from some of them who appeared to have been going at the others and even lecturing them for having seen the case and decided differently.
Another important point that emerged is the fate of the decision of the same court in the presidential election petition of 2013.
In 2013, the same court had decided that mere challenges to procedure were insufficient to justify nullification of a result.
In addition, the complainant was required to also demonstrate to the court that the irregularities would have amounted to a change of the results in that the person declared the winner would not have won. Without establishing this, the mere process failures would not do.
The 2017 decision is a radical shift from this position, as the judges held that the process is as important as the result.
Giving a simple and sardonically amusing allegory, the judges of the majority said: High school mathematics requires not just the answer to a sum but the method by which the answer is achieved.
This decision, therefore, shows that there is a clear shift in the approach of the majority in the Supreme Court to these issues.
Of equally interesting dimension was that all the three judges who ascended to the Supreme Court under the presidency of Uhuru Kenyatta (that is Chief justice Maraga, Deputy Chief Justice Philomen Mwilu and Justice Isaac Lenaola) were in the majority who nullified the election of the president who had been involved in their appointment.
This is an indication of the scaffolding that the constitutional development of Kenya provides.
It does appear that the Supreme Court is coming of age in terms of the judges therein beginning to exhibit their respective juridical ideological postures.
This may be good for the court, but may mean that the appointment of judges to the Supreme Court will begin to take more overtly political tones during the confirmation hearings for the chief justice and the deputy in the National Assembly.
In this regard, Kenyans need to be alert because a Supreme Court needs men and women of sound legal posture. Room must not be ceded to the political branches to begin litmus testing judges for political correctness.
Finally, I have argued before that of all the three arms of government, the judiciary is the one institution which the 2010 Constitution specifically targeted for what would be harsh cleansing.
This was because it is the judicial officers who had to be vetted upon the new Constitution coming into effect, with the result that some of them lost their jobs.
This could have been cathartic and intended to prepare the judicial officers who would survive this for the skills and grit that administering the interpretation of the Constitution would call for.
That there would be persons happy with them while others, extremely powerful, would be extremely unhappy — and that is the bedrock of a democracy.
Sekou Owino is head of legal services at Nation Media Group.