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OPINION ARTICLE

BY ELIUD OWALO
WHY THE PERFORMANCE OF THE SUPREME COURT SHOULD BE
SUBJECTED TO THE VERDICT OF THE SOVEREIGN COURT OF PUBLIC
OPINION THROUGH A REFERENDUM.
On the 7
th
July 2014, the opposition released a raft of resolutions covering a total of 13 issues,
out of which questions have to be formulated and presented to the Kenyan people in a
referendum. The resolutions followed a series of consultative public rallies across the Country
during which hearing and collation of peoples grievances and concerns were noted. Of the 13
issues identified, there is the peoples expressed dissatisfaction with the performance of the
Independent Electoral and Boundaries Commission (IEBC) and the overwhelming feeling that it
needs to be overhauled and reconstituted.
However, my considered opinion is that there was a technical lapse in the omission of the
performance of the Supreme Court from the issues that need to be subjected to national debate
through a referendum; more so in relation to its handling of election petitions since it came into
existence in 2012. Deductively, the failure of IEBC to perform professionally, impartially and
competently during the 2013 general elections in the Country has surprisingly been sanitized
by questionable rulings on petition cases by the Supreme Court despite the fact that the Court of
Appeal on its part has faulted and refused to be bound by such rulings. The Supreme Court
rulings have largely supported the Electoral misdeeds and misconducts of IEBC. In this regard,
the 2013 Presidential Election Petition No.5, filed by Hon. Raila Odinga was the first such case
presented to the Supreme Court for adjudication. The way in which the petition was handled and
concluded not only startled the entire legal fraternity locally and abroad but also brought into
question the impartiality of the Supreme Court in handling such cases, and hence its raison
detre .Even ordinary citizens less schooled in legal matters doubted the competence and
impartiality of the Court to serve as a neutral arbiter in electoral disputes.
Following the much criticized and faulted ruling in the Raila versus Kenyatta petition case, the
Supreme Court has continued to raise a lot of legal concerns and resentment in legal circles by
overstepping its jurisdiction and making disturbing rulings in election petitions, which rulings
are clearly intended to support the erroneous ruling it made in the 2013 Presidential Election.
The Supreme Court though the highest legal Court in the land, has been criticized by the Court of
appeal which has faulted its rulings on election petitions and is not keen in being bound by such
rulings. On its part, the Constitution is explicit on the mandates of each level of the judicial
system, starting from the magistrate Court, in addressing electoral disputes. It is instructive that a
Supreme Court Judge who participated in the hearing of the 2013 Presidential Election petition
also faulted the Court in the way it handled the case. The impact of the Supreme Court ruling on
that case traumatized and adversely affected the majority of the citizens in the country.
Clearly, the Supreme Court appears to be on a suicidal enterprise aimed at justifying its faulty
ruling, and scholars are unhappy and concerned that the Court is in fact frustrating the
development of intellectually sustainable legal jurisprudence in the Country. No wonder
scholars, jurists and even lower courts have declined to apply the Supreme Court Presidential
election Judgment as a precedent.
To date, the Court has turned down seven rulings of the Court of Appeal on Election Petitions
on flimsy grounds such as legal technicalities which should be less emphasized vis-avis
substantive justice. Further, it has stepped out of its jurisdiction by handling matters which fall
within the purview of the Court of Appeal. Besides, the Supreme Court has curiously
emphasized legal technicalities instead of promoting substantive justice as stipulated in the
constitution. Controversial judgments made so far by the Court include the Raila versus Kenyatta
petition case, Governor Munya petition case, Governor Obado petition case, Othaya MP Mary
Wambui petition case and Garissa Governor Nathif Jama petition case.
It is noteworthy that the purpose of establishing a Supreme Court was essentially to deal with
disputes relating to the election of the President, and issues requiring constitutional
interpretation. It was also intended to improve the administration of justice, which
responsibility was bestowed in the Court of Appeal by the previous Constitution. But the
Supreme Court now appears worse than the former Court of Appeal. Its justices have evidently
failed to demonstrate professionalism, impartiality and competence in their judicial work. And
perhaps, this explains why in the history of Post- independence Kenya, a citizen has filed a
petition with the Judicial Service Commission (JSC) seeking the removal of the Chief Justice
from Office on grounds of incompetence and breach of judicial code of conduct.
The incompetence and impartiality of the Supreme Court puts the Country into a very difficult
position for it is the Court of last resort. One fundamental issue relating to the performance of the
Court in election petition cases concerns the future choices of the people for the Court as an
arbiter in election disputes. Indeed, the Court has created huge public doubt and mistrust in its
capacity to perform with impartiality. On the basis of its performance so far, the Supreme Court
needs to be subjected to the scrutiny and verdict of the sovereign Court of public opinion.
Admittedly, this is the actual highest political Court in the land and should be able to determine
in a referendum whether it approves or disapproves of the competence of the Judges of the
Supreme Court as is currently constituted.
Obviously, without re-constituting the Supreme Court and setting aside some of its rulings
relating to the 2013 elections petitions, the public will lose confidence in it to handle future
election related disputes. So it is imperative to formulate and present to the Kenyan people a
question on the extent of the jurisdiction, competence and impartiality of the Supreme Court for
a decision through a referendum.
The writer is a Management Consultant based in Nairobi.