Certain utterances made by leaders in the ongoing debate over the election date have come to the attention of the Chief Justice, which require instant comment.
Without regard to the merits and demerits of the decision by the Independent Electoral and Boundaries Commission, let it be known for the record that all the courts in Kenya – from the highest to the lowest – are established by the Constitution and operate under the law. Each court exercises its responsibilities only as laid out in the Constitution and under the law.
The law requires the Independent Electoral and Boundaries Commission to make certain decisions and undertake specific actions. The Commission has a legal duty to interpret both the Constitution and the decisions of constitutional courts in order to carry out its mandate under the law.
Those who believe its decision is wrong can seek redress in a court of law.
It will be recalled that IEBC had sought guidance of the courts on the election date as part of its preparations for the General Election. When the matter came before the Supreme Court, it was referred to the High Court.
On January 13, 2012, a three judge High Court bench made its finding on whose basis the IEBC has taken certain decisions.
It is right and permissible to disagree with the decision of the constitutional court or any other court; the right to disagree with the IEBC or any commission for that matter is equally protected. The law and the constitution anticipate such disagreement and create avenues of appeal to resolve them amicably.
While the ongoing robust debate is healthy and necessary in a democracy, it must be conducted in civility and within margins of the constitution and the law. Nowhere is it made acceptable to disparage the courts through name calling and utterances that seek to undermine their authority.
It is therefore distressing that individuals who bear a special responsibility to uphold the constitution because of their leadership role would appear to vilify the courts.
Reports to the effect that prime Minister Raila Odinga allegedly claimed that in arriving at the election date, The Independent Electoral and Boundaries Commission was interpreting a decision by ‘korti bandia’, meaning fake or kangaroo courts are deeply troubling.
Mr Odinga is the Prime Minister of the Republic of Kenya. As a creature of the law, he is a critical and fundamental arm of the Executive. He must be aware that he bears a duty to uphold and protect the independence of the Judiciary as required by the Constitution – especially in instances where he is unhappy with its decisions.
Such unprovoked utterances are as unfortunate as they are unacceptable. They reek of Executive impunity and have no place in a properly functioning democracy.
I would like to appeal particularly to leaders to be conscious of the heavy ramifications some of their statements could have for our society and caution them to exercise their rights of free speech within the realm of the law.
Dr Willy Mutunga, D. Jur, SC, EGH
Republic of Kenya/President of the Supreme Court