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Supreme Court, and not lawyers, should be in control

In the context of the petition that has been filed in the Supreme Court, challenging the 2017 elections, what happened in the first presidential election in 2013 needs revisiting.

When the court got down to hearing the petition, it had to deal with an application by politician Naslin Umar, who wanted a chance to participate in the proceedings.

She made very clear her unhappiness about what she thought was unfair treatment by the court.

However, the lawyers acting for Uhuru Kenyatta and William Ruto, the ticket that the Independent Electoral and Boundaries Commission (IEBC) had declared winners in the election, together with the IEBC lawyers objected to her participation in the proceedings.

Upholding their objection, the court dismissed Umar’s application and she was not allowed into the proceedings.

NO OBJECTION

The next application came from the Law Society of Kenya. The Society wanted to join the proceedings as amicus curiae (a friend of the court).

The legal representatives of Raila Odinga, together with those of Gladwell Otieno and Zahid Rajani, the petitioners in the case, had no objection to the involvement of the Society in the proceedings.

However, the Jubilee lawyers and those for the IEBC expressed their objection to the Society being allowed into the proceedings.

Siding with the Jubilee lawyers, the court disallowed the participation of the Society in the proceedings.

The Attorney-General, Githu Muigai, made the next application to join the proceedings. Like the Society, he indicated that he wanted to be a friend of the court.

This time, the lawyers for the petitioners objected. However, the Jubilee lawyers had no problem with the Attorney-General’s participation in the proceedings.

The court allowed the Attorney-General, siding with the Jubilee side.

PROCEEDINGS

Katiba Institute, a civil society organisation whose chair is Yash Ghai – the architect of the current Constitution – also applied to be allowed into the proceedings.

In ordinary times, Katiba Institute had been active in bringing litigation in the courts, including the Supreme Court, and the judges would have known the organisation quite well.

Whereas the lawyers for the petitioners had no objection to Katiba being allowed into the proceedings, the lawyers for Jubilee and the IEBC opposed the application. Upholding the objection by the Jubilee side, the court dismissed the application.

Odinga then brought his now-famous 900 page additional evidence.

There was a lack of clarity as to whether he could file the document, and the judges seemed to have allowed it into the record until the lawyers for the Jubilee side opposed its admission.

It is at that point that the court disallowed its admission, again, concurring with the Jubilee lawyers.

The last application was made by Odinga’s legal team. They wanted the court to order the IEBC to produce the IP addresses for its servers and certain computer logs that were relevant to allegations they had made against the IEBC.

JUBILEE LAWYERS

The Jubilee lawyers and the IEBC, again, opposed this application, and the court again dismissed it.

The significance of the computer logs lay in the fact that Odinga had alleged that the IEBC had shared a server with The National Alliance (TNA), a grave allegation which, if true, would have struck a blow against the integrity of the results announced.

The only way in which this allegation could be addressed convincingly was by the IEBC coming clean on the logs in question.

By disallowing the application, there was no way that this issue could be investigated and, since the period after the elections did not provide an opportunity for the issue to be addressed, it has remained unclear whether or not the allegation was founded.

Before the court, there were two sides. The first side was the petitioners, Odinga in one case, and Otieno and Rajani as co-petitioners in another.

The other side had the respondents, being the IEBC, Uhuru Kenyatta and William Ruto.

NEUTRAL ROLE

When he joined the proceedings, the understanding was that the Attorney-General would, as a friend of the court, play a neutral role.

This is also the position that the IEBC, as a non-aligned elections body, could have taken in court.

However, both the IEBC and the Attorney-General protected the same interests as the Jubilee respondents.

Denis Itumbi and Moses Kuria had filed an alternative petition against the IEBC. While the IEBC opposed the petitions by Odinga and Otieno, it remained neutral about the petition by Itumbi and Kuria, indicating that it would be happy with whatever decision the court made on the matter.

Also, the Jubilee lawyers and the Attorney-General had no problem with this alternative petition.

In the end, this is the only petition that succeeded in court, since those by Odinga and Otieno were dismissed.

Thus, everything that the Jubilee/IEBC/Attorney-General/Itumbi alliance wanted in court was granted.

Also, whatever the same side opposed was also disallowed by the court. Conversely, disallowed everything Odinga or Otieno/Rajani wanted.

On this evidence, it is tempting to feel that the 2013 election petitions had an inexorable outcome, which nothing could have been done to change.

On the same evidence, Odinga’s initial position that he would not be going back to the Supreme Court may become understandable.

Besides these losses, the Supreme Court also provided a platform where Jubilee and IEBC lawyers displayed unbelievable arrogance.

JUBILEE LAWYERS

It is during these proceedings that the former chair of the IEBC demeaned Odinga variously, calling him “narcissistic”, and a “man used to ruin others as a sacrifice for his failures and ambitions”.

Throughout the proceedings, Jubilee lawyers patronised the court which took it in meekly.

It eventually became clear that these lawyers, rather than the court, were in control of the proceedings.

Other than the sense of injustice that a section of the population feels towards the results of the recently-concluded elections, the resulting electoral dispute must be decided by a court whose independence they have little faith in.

The Supreme Court has a difficult job. It must not only deal with the case immediately before it, but must do so in a manner that dispels the perception of injustice that its 2013 decision has come to represent.

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