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Ruling of the Supreme Court will bring legal, not political, closure

Whereas the build-up suggested something huge and unusual in the offing, the eventual announcement was an anti-climax.

Nasa’s decision, however, to petition the Supreme Court was the right way to go. It was in fact the only viable option left.

Reportedly, the decision was a climbdown by a Nasa core that was dead-set on mass protests, believing that going to court was a waste of time.

Calmer minds within prevailed, as did the pressure from international election observers.

Going to court will be in Nasa’s best interests even in their worst case scenario of the Supreme Court upholding the IEBC results.

It provides a soft landing for Nasa, a good exit strategy from a protracted dispute. More importantly, it brings legal closure.

However, it will be a mistake to imagine the Supreme Court ruling will bring political closure.

TAMPERED WITH

Those who believe passionately that the election was tampered with are not going to change their minds – no matter what the seven-judge bench rules.

Those who believe the election was fairly won will also not shift from where they stand. We have the experience of 2013 to go by.

Ultimately, this lack of closure is what is most worrying. It suggests a low tolerance for the mediating role of our institutions, especially when they make decisions that are contrary to our convictions.

That is a political malfunction Kenyans suffer from which no constitution, however exalted, can fix.

Democracy is inherently divisive. Leaders compete on differing platforms. They offer conflicting, even antagonistic, viewpoints on governance and society.

RULES

The system works when the players abide by the rules which, as they are set, are majoritarian.

Yet what we have at the moment is really a political problem, not strictly speaking a legal one.

There are ways to remedy this. As many people have advised, let’s start with inclusivity. The beef with Uhuru Kenyatta’s first term was not so much about policies, but the lack of spread in appointments. Nasa’s posture going forward will be equally important. Threats of civil disobedience if the court rules against them are unfortunate.

That only makes it difficult for the government to extend a hand of reconciliation. As Barack Obama once said of his Iranian adversaries, “you cannot extend greetings to a clenched fist.”

For the next two weeks, the political contest will shift to the Supreme Court. This is as it should be. My problem with this Court is not with its mandate, or its lack of heavy duty work in between presidential elections.

INTELLECTUAL DEFICIT

My problem is what I consider to be its intellectual deficit. I can’t recall any opinion it gave which was memorable for the quality of its jurisprudence.

Its current head, Chief Justice David Maraga, remarked blandly when being interviewed for the job that his vision for the judiciary was to reduce the backlog of cases in the courts. Huh?

There was no word about enhancing the quality of the bench’s rulings.

This is the time to rise to the occasion, though this should in no sense mean what Nasa was implying when it said, in a very ill-advised utterance, that it was giving the Supreme Court “a second chance” so that it could “redeem” itself. In the meantime, a new sexy word has hit the election vocabulary: algorithm.

ALGORITHM

It’s on the lips of everybody who believes something went wrong. Few on the street can tell you what exactly an algorithm is, much less how it is programmed. But it has become an accepted truth that it was something that was deliberately injected into IEBC’s computers with wicked aims.

Well, I don’t suppose this algorithm, or whatever it is, can work on manually-generated Form 34As or 34Bs. The correct tally from these as certified in court is what,

I would think, will ultimately matter. All the same, the judges should better be priming up their knowledge of IT language and systems. They could be hearing a lot of that in the next fortnight.

Warigi is a socio-political commentator [email protected]

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