The politics of the 2017 judgment

163. (3) The Supreme Court shall have—
(a) exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140... - The Constitution of Kenya

The Committee of Experts, reflecting national obsessions that have led to great violence, bloodshed and death, and a two-decades-long lesson in political impunity, gave the Supreme Court the principal duty of hearing and determining presidential election petitions. This duty comes before the duty to hear appeals from the Court of Appeal or any other court or tribunal, and the power of the Supreme Court to give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government. In keeping with our national priorities, it is fitting that the Supreme Court's first duty is to determine presidential election petitions.

The Supreme Court's power, therefore, is not a purely judicial one. It is also a political power and the judges of the Supreme Court are undoubtedly political actors because of it. Tom imagine otherwise is to fail to properly contextualise the role of the Supreme Court in the organisation of Government, in which the exercise of its judicial power in any dispute in which the national executive or the members of the national executive are parties will have political ramifications.

In recent days, a to-and-fro has emerged between those who argue that the invalidation of the August 8 presidential election did not involve the national executive but only the candidate, Uhuru Kenyatta, and those who argue that the invalidation was a "judicial coup". The former, of course, is wrong. Whether or not Uhuru Kenyatta exercises temporary powers of incumbency, he remains the head of state and government, and the invalidation of his election affects the functioning of the national executive. The latter is spectacularly wrong. The incendiary suggestion that the Supreme Court has overthrown the lawful authority of the national executive finds no currency in logic. The truth, therefore, is somewhere between these two extreme and partisan positions and it reveals the Supreme Court's political role, as opposed to its judicial one.

Kenya has at least three decades of judgments of the superior courts, especially the Court of Appeal, that demonstrated the political role of the Judiciary if not the Court of Appeal itself. Almost all of those judgments that the exposed its political purpose related to presidential election petitions. Whatever else it did, the Court of Appeal played its part in ensuring that Kenya enjoyed political stability (at the expense of justice or human rights) by relying on technical reasons to strike down presidential election petitions. One of the most important technical rules it established was that presidential election petitions had to be served in person against the respondent. The petitions could be served by alternative means -- such as advertisement in the newspapers or by affixing it to the known address of the respondent. You had to deliver the petition to the respondent in person -- almost certainly the process server invited the enthusiastic attention of the presidential bodyguard when he went to serve Baba Moi with the petition.

This rule -- established by the Court of Appeal -- might have seemed overly technical in nature but it had profound political ramifications. In 2013, the Supreme Court adopted this technicality-driven approach when it sat as an election court to hear the Raila Odinga petition to invalidate the election of Uhuru Kenyatta. Its rulings and determinations may have been technical in nature butt heir effects were political. The technical ruling that prevented Raila Odinga from filing his voluminous pleadings had the effect of establishing a political rule: it doesn't matter what the process in an election was. So long as the process did not substantially affect an election, the election would stand. This was a logical extension of the rules regarding presidential elections that had been established and cemented by the Court of Appeal down the decades which favoured conservative political principles such as "stability" that had been responsible for making a mockery of Kenya's Bill of Rights, such as it was, in the former constitution.

The Supreme Court is now attempting to re-engineer a system that has deep roots. The judgment in the 2017 presidential election petition is remarkable in one instance -- it acknowledges the existence of the past and the "stability" it guaranteed on the political plane but it declares that that stability is founded on grossly unjust principles. It is no longer enough to rely on technicalities but those technicalities must shew fidelity to constitutional values and principles. (The dissenting opinions go to great lengths to demonstrate that the principles established by all presidential petitions up to the instant date, in effect, are faithful to the constitutional values and principles of this constitution even if they were established under the interpretations of the former.) The political repudiation of the line drawn by the former constitution and rubber-stamped by the 2013 judgment beyond which the superior courts would not enquire -- does process matter as much as the outcome -- is earth-shaking. Its reverberations are unlikely to subside in the life of this parliament or the next. This is a profoundly political exercise of power by the Supreme Court.

The political act of electing a government has always been guided by the maxim, "The end justifies the means". In this case, the "will of the people" isn't determined by the thoroughness of the process or the truthfulness of the outcome, but that the outcome is pronounced at the proper time by the proper authorities and endorsed by the election courts. So what if polling stations went dark for a few hours or presiding officers declared fictitious returns? The whole purpose of the electoral system was to provide a veneer of constitutionality and legality to elections, even if the veneer cracked here and there as minor elected representatives had their elections reversed by subordinate courts. With one judgment, the Supreme Court has declared that a political system founded on half-measures and technicalities cannot stand, and a presidential election shall -- in theory -- be held again and again until constitutional values and principles are fully respected by everyone involved in the election. The era of half-measures and technical reasons for upholding the good-enough-ness of half-measures is under assault. Whether or not this assault on the past is sustained -- and successful -- depends almost entirely on what the beneficiaries of the perfidious past system do.