Elections: Kenya needs a courageous Judiciary more than ever

The Independent Electoral and Boundaries Commission (IEBC) has approved 14,523  candidates to participate  in the  8th August 2017 general elections in Kenya.

The candidates will be vying for different positions (MCA, Member of parliament (MP), Women Representative, Senator, Governor and president).

Read: Kenya’s Certified Register of Voters hits 19.6 million

However, with few days to the voting day, the Judiciary has come into scrutiny after a three Judge bench (Judges Joel Ngugi, George Odunga and John Mativo) of the Kenyan High Court quashed award of the tender for printing of ballots for the August 8, 2017 presidential election to Al Ghurair Printing and Publishing Company.

The judges ruled that the electoral commission failed to conduct adequate public participation, a move that goes against constitutional requirements.

“We order that the IEBC commences the procurement process for printing of election materials for presidential elections scheduled for August 8 so as to ensure free, fair and transparent elections.”

The decision has raffled the ruling Jubilee Party led by President Uhuru who is reported to have said “They are taking us for fools” We will not allow our opponents to use the courts and to intimidate the IEBC, thinking they will win using the back door.”

However, the Chief Justice David Maraga through a statement, came out to  defend the Judiciary. “When political leaders cast aspersions on the administration of justice based on a misinterpretation of my statements, it has the potential to impair public confidence in our courts, and this concerns me a great deal.”

Maraga terms the statements from politicians as ‘unfortunate, based as they  are on completely wrong premise.

“I have always been at the forefront of defending the cardinal principle of decisional independence of judges and at no time have I ever directed any judge or judicial officer on how to determine the cases before them.”

Please see my statement following attacks on the Judiciary by politicians in Baringo today. pic.twitter.com/qALBnhNw3I

— David Maraga (@dkmaraga) July 9, 2017

Uhuru had further said, “You cannot claim independence and use it to interfere with the functioning of the Executive and  other arms of Government,” said Kenyatta, adding that the outcome of the election will be decided by the people and not the courts.

We appeal to the Judiciary not to scuttle the election process. pic.twitter.com/3RhnaGDAu9

— Uhuru Kenyatta (@UKenyatta) July 9, 2017

The Kenyan Section of International Commission of Jurists (ICJ Kenya) in a statement they said, “The interrelated nature of President Uhuru’s frontal attack on the Judiciary as a whole
and veiled threats on individual judges with regards to electoral dispute resolution sends a
dangerous and chilling message: that the executive shall not respect electoral dispute
resolution by the courts and flagrantly negates public trust and confidence in the rule of
law, which unfortunately falls way below the leadership standard expected of a
government and its leaders. This has the potential to exposes the country as a whole to
grave insecurity where electoral dispute(s) arise.”

ICJ Kenya emphasised that the rule of law is the bedrock of a democratic society. It is the only basis upon which individuals, private corporations, public bodies, and the executive can order their lives and activities. “If the rule of law is to be upheld, it is essential that there should be an independent judiciary.”

Justice Maraga’s response is as a result of his statement during his swearing in ceremony, “Elections and Election Dispute Resolution is a key priority for me,” he had said.

“I am determined to do what it takes, to engage as widely as is necessary and as is permitted under the Constitution, to achieve this objective and to ensure that justice prevails and peace abounds amongst the Kenyan people.”

The Independent, electoral and Boundaries Commission (IEBC)  has already held a meeting with Presidential Candidates and received public views on ballot paper procurement ‘to find a practical solution’. However, it has already announced that it

Former Chief Justice, Hon. Dr. Willy Mutunga, in his ‘A new Bench-Bar Relationship: The vision of the 2010 Constitution of Kenya’,

“The bench and the bar as guardians of the Constitution must work together to pave the way for our country out of its past of tyranny towards the realization of the liberties and freedoms that the Constitution has bequeathed for the citizens. This is ever so important, especially when vestiges of the old republic are actively resisting the new Constitution. By protecting political freedoms and limiting state power, the bar and the bench facilitate and encourage an engaged civil society, which holds all branches of government accountable.”

The former CJ emphasised that the making of the Constitution did not end with its promulgation. “It continues with its interpretation and implementation.”  

He notes the bench and the bar now have the challenging and difficult task of implementation because Kenya’s destiny as a successful nation-state, committed to the enhancement of its citizens’ welfare is hinged on the full-scale implementation of the Constitution.

“Our transformative Constitution requires the judiciary to win back public confidence and express itself with such authority and integrity that the public will always respect its opinions and decisions.”

Maraga also reiterated that, “A Judiciary that is people-centered and a fair and firm defender of their rights. A Judiciary that is independent, and one that robustly upholds the Constitution. A Judiciary that gallantly fights corruption within its ranks, and one that is transparently managed.”

Besides, The Constitution of Kenya promulgated on 27/08/2010 in its preamble, explains what the  constitution is about says:  “We the People of Kenya; Acknowledge the supremacy of the Almighty God of all creation; Honour those who heroically struggled to bring freedom and justice to our land; Proud of our ethnic, cultural and religious diversity and determined to live in peace and unity as one indivisible sovereign nation.

Parliament, the Executive and Judiciary are as per the constitution given duties, rights to exercise, execute the sovereign power of the people of Kenya as subordinates of the people of Kenya.  The three institutions and those who occupy them are therefore trustees of the people of Kenya and the occupants of those institutions are delegated to faithfully, honestly, exercise the highest powers of the country of Kenya as per the Constitution and all the laws of Kenya.

The occupants of the institutions of the Executive, Parliament and the Judiciary cannot as per the Constitution pretend, purport to exercise any powers or bestow on themselves any rights greater than those set by the constitution and the laws of this country.

DCJ Philomena Mwilu addresses journalists in Mombasa. She said the Judiciary is ready to handle election- related matters. pic.twitter.com/KtZvUgLXqk

— David Maraga (@dkmaraga) July 3, 2017

“As we approach the General Election, the baton will soon be passed on to the Judiciary and specifically to Maraga’s court, which must not let Kenyans down when it comes to the determination of matters that are within its jurisdiction,” says James Aggrey Mwamu, former President of the East Africa Law Society and an Advocate of the High Court of Kenya.

Read: Kenyan Electorate torn between Political Parties, Manifestos and the reality

According to Prof. Karuti Kanyinga the Judiciary is the most transformative element of the Constitution. “An institution that has remained faithful to the constitution is the Judiciary.”