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Life and Law – My Ruminations on the Election Date Debacle….


Farmers and pastoralists taking time off their daily social and economic activities to cast their votes - Courtesy of the Daily Nation 


Am currently reading a book, partly because it is by a renowned judge, whose inspiring life leaves me in awe, and partly because am trying to get a South African perspective for my Master’s Thesis. The Book is The Strange Alchemy of Life and Law (2009), by Justice Albie Sachs, former Judge of the Constitutional Court of South Africa, and currently a member of the Judges and Magistrates vetting Board in Kenya.

The book gives a moving account of his life prior to being appointed to the court by president Nelson Mandela, his activities in support of the ANC, how his life experiences including surviving a near death experience after being bombed by secret service of the then apartheid government, and how these greatly influenced his decisions while serving in the highest court in the country – a court that is respected in Africa beyond.   

His decisions, some of which are found as excerpts in the book focus on how the law can be interpreted for the people’s benefit, to promote cohesion, to fight racism, sexism and inequality. I strongly recommend a look at this book, not only for judicial officers – who would of course relate -  but for the legal community and even beyond to see how the judiciary can assert its role in protecting the constitution and making it work for the common person.

The book set me thinking. One, I sure hope Judges, when making very important – life changing decisions – think about these cases beyond the court room and their offices, and get ahaaaaaah moments, e.g. while in the shower!! How much heart do Kenyan judicial officers put into their work? Read an array of decisions from the High Court and Court of Appeal and make your own judgment….

Two, which prompted this note, is with regard to the highly disputed election date. After months of debate, people have begun interrogating and seriously criticizing the Decision by the Constitutional and Human Rights Division of the High Court read by Justice Lenaola. Weighing in on the criticism has been the person of the Prime Minister calling it “mahakama bandia” (he has since retracted his statement and reiterated his respect and confidence in the judiciary as presently constituted).

In a note I made HERE on that decision soon after it came out, I made it clear that a couple of reasons may have influenced the decision. A court seeking to cement itself as having a new face, keen on shaking off its dark past, would not want to prove to the public that it was toothless by making a decision that would have been immediately overturned through a constitutional amendment. The decision seemed to opt for giving more time to the political processes (read confusion) to take their course. The decision stopped parliament from making rush amendments to the constitution which is a good thing. Time has proven that indeed the political class led by the two principals President Kibaki and Prime Minister cannot agree on an election date, and neither can parliament. I view the March 4th 2013 date proposed by the IEBC as further letting and pushing the political class to agree on this one thing. Clearly instead of doing so (still within their power as the court recommended) they have instead turned their heat on the constitutional body, or supported it, depending on the interests.

The Appeal decision is timely. Enough time has been allowed for public debate and political processes, or a lack of them. It is time for the court to make a decision on this law that works not for the political class but for the people. I may not be the biggest fan of the person of the Prime Minister nor his sworn nemesis William Ruto (am impressed by their sudden intercourse of minds on this issue) and his confused G7 breed, but reasons given by them for an election this year make a lot of sense, for the common mwananchi.  

What are people concerned with? Well my grandmother is concerned about a good maize harvest, my neighbors are concerned about preparations for exams for their kids, registrations for KCPE & KCSE candidates, small and medium businesses picking up after the long xmas break, etc. They care less about an election that so far has proved divisive and destructive than otherwise.

If the Appeal decision is to consider its important role of making the law work for the people it will make a decision that says the following; one, there has been a long and convoluted debate on the election date enough is enough, two, the people who stand to lose most from a divisive and destructive process are the people of Kenya, not the politicians (also of Kenya, though i am afraid they often times forget they are), three, the Judiciary is one of the forces that can influence cohesion and national integration (as was reflected in the Agenda 4 need for judicial reforms), four, the courts have the final say on issues of law and here goes our decision finally, five, the constitution must be protected, and this must be done in such a way that reflects the fact that it is the people's collective will, and six, the law as hereby interpreted must be seen to work for the common mwananchi and not interfering with that which Wanjiku holds dear, is our very important role.

It is is never law and then life, it is always life, and then the law….

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