Judges Mumbi Ngugi (left) Isaac Lenaola (centre) and David Majanja (right) when they delivered their ruling on the elections date case at the High Court Courtesy of Daily Nation
It certainly has been an eventful day and quite historic in many respects. Camera wo/men and reporters running from one end of the streets of Nairobi to another, with the sole aim of giving us the news ‘real time’. A day that was anticipated by all in Kenya and abroad, on issues that would have a great impact on the direction of the reform process from now henceforth. The first – a decision on the controversial election date, and second the fate of our gun-brandishing Deputy Chief Justice.
The Election Date Case
John Harun Mwau & Others and the Hon. Attorney General & Others Constitutional Petition No. 65 of 2011 popularly referred to as the ‘Election Date’ Case. Originally three Petitions, namely; Constitutional Petition No. 65 of 2011, Constitutional Petition 123 of 2011, and Constitutional Petition No. 185 of 2011. The Supreme Court declined to adjudicate over or give an opinion over the issue, referred the matters back to the High Court for Determination, and the different cases were consolidated into one case – hence Constitutional Petition No. 65 of 2011. The petition had Professor Yash Ghai an internationally renowned constitutional expert, as well as others as Amicus Curiae. The prayers sought in the consolidated Constitutional Petition were; i) A determination of the question as to when the next general election should be lawfully held, (ii) A determination as to whether an amendment to the Constitution affecting the term of the President can be proposed, enacted or effected into law without a referendum being held under the Constitution, (iii) A determination whether the unexpired term of the existing members of Parliament includes terms and conditions of service, (iv) A determination whether the President has power or authority to dissolve Parliament under the current Constitution; and (v) Who should bear the costs of the Petition as consolidated? Prof. Ghai among other things contended that there was no legislation or decision that was being challenged, the petitions were based on public debates, positions and proposed bills to amend the Constitution and regulate elections, that such issues were not disputes and there was no controversy for the court to resolve, and that no wrong had been committed or done to the petitioners or any persons they purported to represent.
The decision prepared by Mumbi J, Majanja J and Lenaola J who read it, pointed out at the onset that “…our Constitution provides the guide to its interpretation. Article 259(1) provides that the Constitution shall be interpreted in a manner that promotes its purpose, values and principles, advances the rule of law and the human rights and fundamental freedoms in the Bill of Rights and permits development of the law and contributes to good governance."
In a nut-shell therefore, the Learned Justices Held that the election shall be held within 60 days in 2012, upon dissolution of the national accord, or within 60 days of 15th January, 2013, the president has no power to dissolve parliament, the IEBC shall fix the date for the first election, extension or change of the President’s term cannot be done without a referendum, the terms and conditions of service of Members of Parliament are governed by the National Assembly Remuneration Act, and that each party should bear their own costs.
The Village Market Security Officer Ms. Kerubo vs. DCJ Baraza assault inquiry
After carrying out a number of interviews, examination of witness testimonies and a review of the security surveillance tapes, the JSC finally made the shocking (but anticipated) decision to forward the matter to the President advising on the suspension and the setting up of a Tribunal to investigate her conduct pursuant to Article 168(4) of the Constitution of Kenya.
Looking at the two decisions both very sound in my opinion, there is certainly a thread that runs through then, and that has informed recent decisions on key constitutional issues by the judiciary. Ever since the Chief Justice was sworn in, the Judiciary has in all respects embarked on a daunting and ambitions agenda to revive and reform Kenya’s Judiciary. The Judiciary is fully aware – knowing its special role in this transition period – that it will be a bellwether, and perhaps a catalyst and guarantor, for wider reforms in the country. The increase in the trust in the judiciary over the past few months has been impressive, but certainly increases the burden on the Judiciary to maintain the momentum that has ushered an end to the corrupt age of political ‘dinosaurs’.
Every act and judicial decision made is subject to great scrutiny and even though the Learned Judges in the ‘elections case’ said that public opinion played no role in their decision (Quoting The State v Makwanyane CCT 3/94 [1995] ZACC), they bear in mind the public’s perception of its role in the process of constitutional implementation. In this regard therefore, the court was very careful to first protect the constitution by making it clear that once the transition period was over, the August election stays and further sent a message to the executive and legislature that any actions to enact ill intentioned constitutional amendments would be subjected to future scrutiny of the courts.
The court was very careful not to act in vain. Declaring the Second Tuesday in August 2012 as the election date, and a subsequent enactment of legislation to amend the constitution would mean that the court basically acted in vain. The decision by the learned judges meant that parliament and the executive, having been given sufficient and ample time to prepare for the biggest ever elections, would look thoroughly mischievous and impish if it went ahead with the constitutional amendments.
On the DCJ issue, the Judiciary was fully aware of the need to sacrifice what I believe is a small good, for a greater good. DCJ Nancy Baraza, by all means fully qualified for her position and reform minded, had to be sacrificed at the expense of retaining – in fact increasing – the trust Kenyans have in the judiciary, and also important, to send a wakeup call to the political arms of government that no one is above the law and if one arm of government can ‘cut an almost perfect but slightly ailing limb’ in order to protect the Constitution, the rest too ought to do the same or suffer the consequences.
These two decisions are a clear manifestation of a maturing judiciary alive to its role of protecting the constitution, entrenching a culture of adherence to the rule of law and ultimately ensuring social justice for the people of Kenya.
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