Attorney General Githu Muigai has cautioned the Supreme Court against departing from the standards it has set in dealing with cases before the court.
Making his submissions before six judges Tuesday, Prof Muigai urged the court to “stabilise the law, to create continuity and certainty”. He said in the case before the court, the judges were being asked to abandon the standards set, in previous cases.
The AG asked the court to first consider the interest of voters as opposed to the will of political parties or politicians.
“My Lords elections are not about politicians or political parties but the right of the voter. The court should ask itself a simple question. Was the election free and fair? Was there transparency, impartiality, efficiency, accuracy and accountability?” he posed.
He said fidelity to the law means respect to the law. “The court must continue to resist an invitation that would avoid clean, black, letter law and clear binding precedence,” he said.
The government chief legal advisor said the answer to any question regarding the election can be found in the Constitution.
However, he said, it is not always the best move because the same Constitution has given powers to Parliament to enact laws that guide the election process.
He said the court should not wholly rely on Constitution solely but instead read it together with other statutes relating to election.
He submitted that there is a whole regime of law, which must be read harmoniously with the Constitution. The AG termed as a false dichotomy, claims that elections in Kenya are wholly electronic.
“Constitution isn’t election statute but it contains the principles observed in creating electoral system. My Lords Constitution cannot yield an answer on whether election was conducted properly,” said the AG.
On his part, lawyers Stephen Mwenesi for the Law Society of Kenya treaded a middle ground saying the lawyers’ umbrella body is facing a delicate situation because its members were in opposing camps, in the petition.
He said Mr Raila Odinga’s running mate Kalonzo Musyoka as well as other senior members, who are representing President Uhuru Kenyatta and the Independent Electoral and Boundaries Commission are LSK members.
President wants Supreme Court to follow precedent set in 2013.