Why CJ should not sit in presidential poll petition



The just concluded General Election, the first under the under the new constitution captured the imagination of the world as Kenyans lined up in droves and stood for hours to cast their votes. A turnout of above 80 percent was recorded and the process was almost entirely peaceful. As the final results were announced, celebrations rent the air in several parts of the country after Uhuru Kenyatta was declared the duly-elected President of the Republic of Kenya.

As in the norm with any competition, there will always be losers and winners. Of the seven presidential candidates who courted Kenyans to elect them as their leader through a peaceful albeit slow process, six of them conceded defeat; while the runner-up Raila Odinga discredited the integrity of the electoral process and vowed to fight the results in court.

This is well within his constitutional rights and his supporters expected as much from him. Kenyans are now waiting with bated breath as the Supreme Court prepares to hear and determine these disputes as set out in Article 140 of the Constitution of Kenya.

Expectations are high on both sides of the political divide have pledged to accept the outcome of the poll petition. Chief Justice Willy Mutunga has promised Kenyans that Supreme Court is ready to hear this petition and that it will guided by fairness to both parties.

In the view of the high expectations that Kenyans have from the Supreme Court, it is imperative that the judges constituting the bench to hear and determine the any petitions relating to the presidential election be beyond reproach and their impartiality be unimpeachable.

I have recently read Miguna Miguna’s book Kidneys for the King and what he says about Chief Justice Willy Mutunga. Miguna quotes Mutunga stating as follows, “I have been talking to the old “Young Turks” because if they accept Raila’s leadership (and) the reform forces in civil society and corporate sector, we can build an important movement to capture power in 2012 under Raila’s leadership”.

Kenyans must also have noted that in another book, “Raila Odinga: an Enigma in Kenyan politics by Babafemi A. Badejo”, the author quotes Dr Willy Mutunga stating as follows: “Raila is a lot of things. He is an aggressive and astute politician. A great mobiliser and organiser… As a Kenyan leader, he would not just be a spineless sycophant. He would insist on dialogue in the pursuit of Kenyan interest.

He also has a vision and road map for Kenya unlike other politicians. I am convinced Kenya’s transition needs Raila as the President of this country”.

From the statements above, which are in the public domain, it is clear that Dr Mutunga has a soft spot for RailaOdinga and it is highly unlikely that such visibly displayed affections have dissipated.

Such statements raise serious conflict of interest and doubts as to his ability to be impartial in hearing and determining the presidential election petitions before the Supreme Court. It is clear that Mutunga has advanced a cause in which Raila is presented as the best man to be President of Kenya. As lawyers will put it no man should be a judge in his own cause.

From the conversation taking place in streets to social media (after you have sifted through the tribal vitriol been spewed there), Kenyans are clear that they want only one thing-justice. Justice is a cardinal virtue of any emerging democracy and Kenyans want the gains the judiciary has painstakingly made to be built upon so as to advance our democracy, not watered down.

Jubilee argues that the will of the people was manifestly reflected during the elections while Cord contends the election was bungled.

The Supreme Court is now in the unenviable position of determining where the truth lies. However, the process through which this is done ought to be transparent and free from either actual bias or appearance of such.

In light of these facts, wouldn’t it perhaps be prudent that the Chief Justice ought to disqualify himself from participating in hearing the presidential petition? The statements he has made coupled with recent developments concerning a “threatening letter from the Mungiki” and the statement he made in response in which he appeared to be campaigning for one presidential candidate casts serious doubt on his ability to impartially determine the petition without an appearance that he will favour Raila Odinga who is a party in the case.

In this regard, justice must not only be done but must also be seen to be done. This need has been emphasized by none other but the Chief Justice of Canada who has stated, “Judicial independence is valued, because it serves important society goals. It is a means to secure these goals.

One of these goals is the maintenance of public confidence in the impartiality of the judiciary, which is essential to the effectiveness of the court system. Independence contributes to the perception that justice will be done in individual cases”.

(Dann Mwangi is a lawyer and researcher at CPS Research International)

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