Independence and impartiality of the Judiciary are some of the most critical hallmarks of a functioning democracy. In this vein, a vibrant Judiciary as a bastion of progressive society can only be realised where it is not subjected to pressures of the Executive, Legislature, private persons and institutions; a Judiciary that is fearless to apply the law in all cases, even where the government is an opposing party.
A Judiciary which is free from external and internal bondage, intimidation and interference is a prerequisite for upholding the rule of law. The ruling by the Supreme Court upholding the election of President Uhuru Kenyatta and his deputy William Ruto must be seen against this background.
In the run up to the ruling, very spirited and clever manoeuvres had been employed to try and box the court into some political trap. To this end, very curious sentiments were being expressed rapidly and repeatedly to the effect that democracy was on trial. In that script, the Supreme Court of the land was to emerge as refuge for democracy by staging its rescue from the perceived hostage takers in the persons of IEBC, the wining coalition and their supporters.
Being the Supreme Court it is, that ploy fell flat on the belly as the court sought to address itself to matters of hard evidence, the facts and the law but not side shows. In the end, a ruling was made and the rest is history. It is very instructive that the CORD coalition had expressed its willingness to abide by the court decision regardless of the outcome. Calls to mass action had therefore been shelved apparently in a bid to avert a recurrence of 2007-2008 bloody scenario.
This was lauded as statesmanship and a move that would foster peace and healing after the divisive polls. It now turns out that we may have celebrated too early. No sooner had the Supreme Court rendered its verdict than all conspiracy theorists descended on the city with all manner of conjecture. Needless to say, these theorists are drawn from a section of civil society and of course the other losers in the petition.
A few days ago, the nation was greeted with a new lingo at a forum organized by the Africa Centre for Governance (AFRICOG) to commiserate after the court ruling. The term ‘people’s court’ was unveiled as the next stop for the people with reservations on the court’s decision. A website has been launched as a platform for members of the public to visit and sieve through the evidence presented by AFRICOG and Raila Odinga the other petitioner and which the court ignored according to AFRICOG. The public has therefore been invited to play the judge (they cannot be judge). Calls for the disbandment of IEBC were also made in the forum while questioning the competence of the Supreme Court!
This move is problematic. To begin with, questions begin to emerge as to the authenticity of the pledge to abide by the Supreme Court’s decision regardless of the direction taken. It appears as though AFRICOG and some people are suggesting that it is either their way or the highway! We must politely disabuse them of this notion. Courts of law are not structured to incubate coups against the sovereign will of the people. They also do not exist to second guess the actions and decisions of other constitutional bodies like the IEBC! These two fundamental facts could have cautioned the judges to exercise judicious restraint in reversing the will of the majority.
Secondly, the term ‘people’s court’ is effectively a resurrection of mass action. The real people’s court is the referendum that passed the current Constitution and the 4th March election in which the majority opted to vote in President Uhuru Kenyatta. Anything else is an invitation to all manner of outpouring and outbursts against the Supreme Court by the generally unguarded public if what has been ‘trending’ on the social media is anything to go by.
This is an affront to the independence and the confidence within the judiciary which was bolstered by the coming into place of the new constitution. It has the danger of subjecting the judiciary to public ridicule, hate and odium. In the meantime, a section of the public who still perceive themselves as losers in spite of the assurance by the President that he belongs to all of us, will continue to hurt and fail to move on.
A cardinal principal of law is an end to litigation. The legal process cannot be infinite. There has to be a final determination to accord the parties an opportunity to invest their energy in other worthwhile undertaking in the task of national building as man shall not live on litigation alone! This explains why no appeal can lie after the Supreme Court ruling. The ‘people’s court’ is therefore a red herring! After all, whose court is the Supreme Court?
Writer is a lawyer with Maina Ngaruiya Advocates – [email protected]