The Supreme Court finally proclaimed a resounding and
unanimous approval for the conduct and management of the March 4 general
elections by the IEBC on Friday. By declining to grant any of the prayers –
especially those of the First Petitioner, the Court shouted out its confidence
in the IEBC. For those of us interested in the jurisprudential value of the
decision, we await to scrutinize the ratio
decidendi of the decision.
A few things are of importance and certainly need to be
mentioned here;
- The case was meant to give direction not only for the petitioners and the country on what constitutes a free and fair election, but further, considering the attention the case had grabbed in the region and the continent (Ghana & Malawi etc.), this case would potentially create jurisprudence of a high enough quality to change the conduct and management of elections on a continent constantly struggling and grappling with election disputes.
- Since the promulgation of the Constitution 2010, it has been a learning process for all citizenry – a regular civic education exercise. The one week hearing provided one such platform – and this it did brilliantly. The airing of the hearings by the media provided an opportunity for Kenyans to demystify the court and court processes, to learn more about the bench, bar-bench relationships, quality of lawyers etc. In addition, the law was to an extent broken down for consumption by the public – Wanjiku they call her (legal jargon aside).
Among the parties to the consolidated petitions - and others
whose applications to be part of the proceedings were rejected – were civil
society organizations which have lately been victims of a barrage of criticisms.
Questions and in many cases taunts have been thrown their way with regard to
who’s interests they serve and their agenda for a country hell bent on jealously
protecting its sovereignty and the exclusive right to chart its own
destiny. Of course most of the criticism
is self serving.
The fact is that Kenya has immensely benefited from selfless
and zealous civil society activists and organizations. A castigation of them
with selfish intentions does nothing for the progress of the nation. The organizations
which may have lately been on a seeming ‘back foot’ as a result of these
criticisms need to still find their relevance in these changing times.
The revamped Electoral Commission as envisioned in the
Constitution was meant not only to prepare for and manage an election that was
free and fair in their eyes, but considering the context and history of
electoral management in Kenya, the conduct of this election had to be SEEN to
be free and fair.
It is therefore important that despite the many unanswered
questions that it was hoped the Supreme Court would address, the civil society
should continue pushing for a proper, transparent audit – independent if
possible – of what exactly happened to the process. The huge investment in the
process by taxpayers further necessitates a scrutiny of each shilling and cent
that was spent to guarantee a free and fair election. The Constitution requires
such information to be made public and empowers the citizenry as a stakeholder
in the process to pursue the making of such information public through legal
processes.
This is a role – a duty - the civil society has been
carrying out, and it certainly cannot back down now.
My Take_
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