analysisBy Seema Shah
The Supreme Court's silence regarding criticisms of the electoral process surprised many, especially given that the court is led by well-known activist Willy Mutunga.
On 30 March, 2013, the Supreme Court of Kenya, led by Chief Justice Willy Mutunga, issued its ruling on the landmark case surrounding the recent presidential election. All six judges were unanimous that the election had been free, fair and in compliance with the constitution; that Uhuru Kenyatta and William Ruto were validly elected; and that rejected votes should not have been included in calculating the final tallies.
The ruling was in response to three separate petitions: one filed by the Africa Centre for Open Governance (AfriCOG) challenging the credibility of the electoral process; one filed by defeated presidential contender Raila Odinga, mainly challenging the results of the election; and one filed by three individuals on the question of whether rejected votes ought to have been included in the final presidential results.
The unanimity of the court's ruling surprised many, but far more surprising was all that was left unsaid. While the court declared the election free and fair, it was notably silent regarding the electoral process - it did not say one word in relation to copious evidence of systematic errors made by the Independent Electoral and Boundaries Commission (IEBC).
And this silence was especially surprising given that the Supreme Court is led by Willy Mutunga, a well-known activist who has long been at the heart of the Kenyan reform movement. After being jailed by former president Daniel arap Moi in the early 1980s, he went into exile in North America. There, along with other Kenyan exiles, Mutunga launched the Kenyan Human Rights Commission which he later served as chairman and executive director. Following Kenya's return to multi-party democracy in 1991, Mutunga and others began returning home. Back in Kenya, Mutunga is credited with helping to launch the Law Society of Kenya into reform-minded activist politics and was heavily involved with the movement to draft a new constitution. He was also the executive director of the Kenyan office of the Ford Foundation, where he focused on human rights, social justice and the protection of women's rights.
Mutunga is thus well-known in Kenya for his commitment to upholding law and the constitution. Mutunga's history of support for democratisation and reform make the unanimous ruling all the more surprising.
Where was Willy?
There are a few explanations for Mutunga's silence, though all have their weaknesses.
Maybe Mutunga genuinely did not believe the evidence was overwhelming enough to justify a decision for the petitioners. But while this may be plausible regarding the results of the election, it holds less easily regarding questions around the electoral process. AfriCOG's evidence pointed to serious and systematic errors including additions to the register after the close of registration; voter turnout in excess of 100% in some areas; and missing tallying documents at the polling station level.
Whether or not these problems affected the results enough to change the final outcome is beside the point. Especially given a history of disputed elections in Kenya, it seems crucial to hold the IEBC to high standards and demonstrate to the public that they can trust their institutions. An acknowledgment of the multiple inconsistencies, errors and unresolved issues could have helped accomplish this.
Another possibility for the silence and unanimous verdict is that the Supreme Court did not want to be seen to be ethnically divided. A split decision could have easily been perceived as reflecting broader social rifts. Of the six judges who presided over the case, some are believed to be politically aligned with the Kibaki-Kenyatta establishment, others with Raila Odinga, while the 'swing voters' hold the balance. It is easy to understand this desire to present a united front - if it was in fact a concern - especially given the fact that most (but not all) lawyer-client teams were ethnically homogeneous. But it remains highly questionable as to whether unity - in the short-term - should be put ahead of a more comprehensive ruling.
Another possibility is that Mutunga was trying to protect the court, which has only been in existence for two years. The judicial sector is undergoing massive reforms, many of which were conceived of by Mutunga himself. Perhaps he felt it was important for the court to maintain a united front in a bid to preserve public confidence during this fragile time. Again, if this is the case, it seems that accountability and transparency are high prices to pay for perceived unity.
And then finally, it is worth considering the possibility that Willy Mutunga is just a lot more restricted than the public imagine as they remember his days as a fearless and outspoken activist. It is, after all, odd that he sat back, silent, as Ahmednasir Abdullahi, representing the chairman of the IEBC, brazenly disrespected the judges multiple times, questioning whether they had "enough space" in their heads for aspects of his argument. When Justice Wanjala reminded Abdullahi that it was not the court that was on trial and advised him to stick to his client's case instead of telling the court to use judicial restraint in its decision, Abdullahi responded by saying that the court "is on trial".
It is possible that the Supreme Court will reveal more and cover the evidence in more depth in their detailed judgment, which is expected to be released by 13 April. Let's hope so, because that will surely be a more definitive indicator of what Kenyans can expect from their Supreme Court in the future. Maybe, for better or worse, Kenyans will also finally be hear Mutunga's voice again.
Seema Shah earned her PhD in Political Science from UCLA. She currently works as a Researcher in Kenya, with a focus on elections and ethnic violence in the developing world.