The Star (Nairobi)

13 October 2012

Kenya: Election Battle Shifts to Courts

The battleground for next year's general election is now shifting from the Independent Electoral and Boundaries Commission to the judiciary where crucial pronouncements are pending or are likely to be made.

Besides the much-awaited determination on eligibility of Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto to contest for the presidency, a number of other key determinations are in the offing.

The Commission for the Implementation of the Constitution (CIC) has a number of cases among them one seeking to stop Parliament from providing a soft landing for political losers as nominees of parties. CIC is also in court against Parliament over the alleged "watering down" of the Leadership Bill.

This week, Attorney General Githu Muigai asked the Supreme Court to offer an advisory on gender and integrity provisions of the constitution. He also wants the court to offer guidance on handling of first round presidential disputes.

Besides these determinations and a number of others that might come by, the judiciary will also hear and determine election petitions for both levels of government- national and county, within six months after the election. A number of rulings with serious impact on the election have so far been delivered.

Among these is the January decision on election date, the August tribunal decision on deputy Chief Justice Nancy Baraza and the September High Court decision nullifying the appointment of Mumo Matemu as chair of Ethics and Anti Corruption Commission.

"Yes we acknowledge that so much is placed on us this time round. However, it has to be realised that part of the immense public confidence is misplaced in the sense that all other institutions have to play their respective roles," a judge told the Star.

According to the judge, the judiciary is "preparing and bettering itself" to handle the challenges that will come with the first election under the new constitution. He, however, insists that it must be remembered that judiciary is at the tail end of the justice chain.

"Other institutions must rise to the occasion as well. The Ethics and Anti Corruption Commission must be in place and active, the IEBC must do its work; we must have an engaged and active citizenry. The police must equally do their work if we have to deliver it this time round," he cautioned.

The judge fears that the judiciary may be setting itself up for failure if citizens do not fully understand its role in an election process. He says election is a process and more often than not, judiciary gets much involved on dispute resolution at the very end.

Already, the judiciary has a running committee preparing itself to handle the election matters. The committee released an interim report last month alerting the country of certain legal loopholes which need to be fixed before the election.

Transitional justice scholar Dr James Gondi believes that the judiciary has already pronounced itself of its central and critical role in guiding the country through this particular election. He termed the handling of the Baraza case as a pointer that the judiciary means business this time round.

"It has already shown itself that it can ably scrutinise itself in the same manner it hopes to scrutinise others. Through the Baraza process, the judiciary has also showed that it can serve ordinary Kenyans even when one of their own at the very top is involved," Gondi says.

This should scare politicians. In the decision by a tribunal chaired by retired Tanzanian Chief Justice Augustino Ramadhani, Nancy Baraza formerly the deputy Chief Justice lost her job over a new year eve gun drama involving a guard Rebecca Kerubo.

According to Gondi, this decision attests to the dwindling power of the elite to chart the course of justice: "And this is a positive thing because it conforms to the aspirations and wishes of Kenyans when they passed the new constitution in 2010."

Both Baraza and Matemu's decisions have been cited by analysts as "important notices" to those seeking public leadership roles in the coming election. No lesser than the CJ Willy Mutunga himself has confirmed that the rulings on these cases are significant.

Speaking on Citizen TV breakfast show last Wednesday, Mutunga asked Kenyans to look to the two decisions if they want to have an idea of how judiciary will deal with integrity issues.

Of significance too is that integrity issues can be brought before the elections-like they have been brought out for Uhuru and Ruto or after the election as petitions.

In the Baraza case, the tribunal lowered the threshold of integrity test by saying it is not to be conducted on the basis of concrete evidence. Further, the tribunal appeared to suggest that the true measure of integrity is not necessarily confined in law.

"The evaluation of conduct of the holders of public office at all levels extends beyond the provisions and limits of legislation. It includes and presupposes the social domain, whose expectations are taken for granted within society, though not expressed in written law," Baraza verdict said while stretching the test outside the law.

To prove its point, the tribunal came up with a list of 148 national values "illustrative" of Kenya. They said the list which included values as fidelity, self control, consistency, tenacity, remorsefulness, acumen, patience, modesty, amicability, moderation, courtesy, patience, manners and even likeability was not exhaustive.

In Matemu's case, the judges were equally assertive that the High Court- in particular- would not hesitate to step in where parliament and executive fail Kenyans. The judges reminded the executive and parliament that the High Court is the ultimate guardian of the constitution on behalf of the people of Kenya.

They said they will not turn away people who challenge suitability of public officials simply because the court is not the appointing authority. They said they had a role to enforce the constitution where it was being violated.

"Kenyans were very clear in their intentions when they entrenched Chapter Six and Article 73 in the constitution. They were singularly aware that the constitution has other values such as presumption of innocence until one is proven guilty.

"Yet Kenyans were singularly desirous of cleaning up our politics and governance structures by insisting on high standards of personal integrity among those seeking to govern us or hold public office.

They intended that that Chapter Six and Article 73 be enforced in the spirit in which they included them in the constitution," paragraph 102 of Matemu ruling said.

The three judges said Kenyans did not intend that the provisions on integrity and suitability for public offices would be mere suggestions, superfluous, ornamental or lofty aspirations. They wanted them to have a "substantive bite."

Both Matemu and Baraza have lodged appeals on their respective decisions. The outcome of the appeal will have substantial bearing on the election.

For instance, if bite implied in Matemu's decision is maintained, it could knock off most of the political aspirants, before election or after in the petition. The issue would only then be an active citizenry willing to bring petitions and sustain them against the odds.

According to Dr Ben Sihanya, a legal scholar, the courts have a historic and singular opportunity to cleanse the political system in Kenya by enforcing the constitutional provisions on national values, principles of governance and leadership.

"For long now, the political process has given us crooked leaders who lead crooked lifestyles and practice crooked politics. The courts now have the opportunity to rise to the occasion and put paid to this vicious cycle," Sihanya says.

He says this is the first time the country is going through a major transitional election with fresh rules of the game on the cards and many positions being contested. He says the presidential election appears closely called as well.

Sihanya says the current crop of political class had in many instances worked against public aspirations. The laws to be relied on are also not very clear in certain aspects hence the courts may be the tie breaker.

"They watered down the Integrity Bill. In the circumstances, we will have to rely on the courts to uphold integrity. And if they stop some of these people from contesting so be it," Sihanya added.

The case against Uhuru and Ruto is particularly significant. With it lies the fate of their presidential bids and a possible ripple effect across the entire political scene before and after the election.

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