Blog

10^th May, 2012

BY: The Hon. Dr. Justice Willy Mutunga, SC,

Chief Justice/President, Supreme Court of Kenya

With Kenyans preparing to choose close to 2,000 individuals for public office, the forthcoming election is unprecedented in both scale and complexity. Elections on our continent have often been cast as meaningless periodic rituals, or as cataclysmic events characterised by upheaval and disruption. Where a balance is struck between these two extremes, electoral events are heavily scented by corruption.

Because of the entrenched culture and practices around elections, the numerous covenants signed and ratified with regard to political rights appear to have no more value than the paper on which they are printed.

For a long time, Kenya successfully disguised its electoral weaknesses from the world, and thus appeared to do better than most of her neighbours.

The electoral crisis of 2007 and its aftermath was caused by numerous malpractices and outright criminal activity, but exacerbated in large part by a refusal to take disputes to the courts. Numerous reforms later, the country’s ambition is to not only prevent a recurrence of past mistakes, but also to deliver an election that would be a model for other democracies. Through proper institutional conduct, we in the Judiciary intend to earn the public confidence that was so dented at the last election as to discourage parties from taking disputes to court.

As I have pointed out in the past, our democratic and developmental transition is promising but still fragile. We have an obligation to nurture, protect and promote it. Heading into the biggest election this country has ever held, the Judiciary is keenly aware of its multiple, special roles with regard to the elections.

First, the Judiciary has the responsibility to interpret the Constitution. There are many constitutional provisions governing the election that remain untested and could, therefore, be contentious. The Judiciary’s foremost role will be to interpret the Constitution and the law in order to deliver the fullest benefit due to each citizen.

Our national vision is derived from our Constitution. Article 38 guarantees every citizen the freedom to make political choices. The right to participate in the formation and activities of a political party or cause, to vote in and contest elections, as well as to hold public office is at the heart of our democracy.

Peaceful, free, fair and regular elections are not a pie in the sky – they are a right to be exercised by all citizens as an avenue for expressing the will of the people on how they wish to be governed. It is indeed high crime for an individual, an institution, or a group of people — through incompetence, negligence or design to act or neglect to act in order to aid the subversion of the sovereign will of the people and thus make the expression of this will inarticulate.

The principles for the electoral system enumerated in Article 81 must come to life. The crossroads at which we stand as a nation demands that we follow only one route — and that route leads us to the implementation of the Constitution. Never before has the call to service been clearer for the Judiciary than it is now. At moments of transition, the Judiciary is the guardian of all. We cannot be shy in the execution of our mandate. We shall be proactive in interpreting the Constitution to give the fullest effect to its intentions.

Secondly, the Judiciary has a role to uphold the rule of law and ensure that justice is done to all, regardless of status. The rule of law is the cornerstone of our national vision. Those who disobey the laws of the land should know they cannot hold public office. For all other citizens, this message cannot be over-emphasised: the Judiciary is for all Kenyans and the depth of one’s purse or the size of one’s stature will not buy anyone impunity before any court. Judges and magistrates are Kenyans, too. They can no longer hide their heads in the sand when the nation’s survival is constantly threatened by those who disobey our laws.

Those who say our politics are dirty have not read the Constitution. The intention of the Kenyan Constitution is to clean and cleanse our politics. The Judiciary is only its handmaiden. Those who wish to undermine the true purpose of elections should be cautioned that they could very well be writing the epitaph to their political careers. Chapter 6 of the Constitution, as well as the values expressed in the entire covenant, are collectively the perpetual guillotine for those who do not pass muster. As we campaign for public office we must never for a moment forget that our careers and those of those we support are perpetually on the line. All citizens must watch what they say, what they do, what they think and imagine, and always remember the Kenyan nation is bigger than all of us. Impunity is on its deathbed, placed there by the will of Kenyans as writ large in the Constitution.

Violence, in whatever form, is outlawed. Leaders at all levels must live by the values articulated in the Constitution. For political leaders and all those holding public office, the wages of violating any of the provisions of the Constitution are writ large in law.

Third, the Judiciary is required to provide leadership in ensuring the system of justice works from start to finish. The National Council for the Administration of Justice, of which I am chairperson by grace of the law, has been activated to enable conversations that allow all stakeholders to hold their own fort. The space for buck-passing has closed.

While respecting the constitutional mandates and independence of each of these institutions, the Judiciary has already convened meetings with stakeholders to raise preparedness for the elections at a par across this entire assembly line of justice. I am happy to report that the police, the Directorate of Public Prosecutions, the State Law Office, the prisons, and the Ministry of Justice, National Cohesion and Constitutional Affairs are already part of this conversation and will readily share their expertise and knowledge in the preparations we undertake as a nation. I want to urge each one of them not to conduct themselves in a manner that undermines our electoral and constitutional democracy.

Fourth, the Judiciary must arbitrate in electoral disputes. The Constitution, which includes an expanded Bill of Rights and values that underpin its interpretation, will be applied for the first time in deciding electoral disputes. Our approach to the Judiciary’s role in this regard is informed by the logic that the most useful forms of dispute resolution must occur at the initial stages of disagreement before differences escalate.

Should there be disputes, however, there are many avenues for resolving them, and the courts are only one of these. The Political Parties Act, enacted as required by Article 40 of the Constitution, provides for internal mechanisms of resolving disputes within parties. In the event that one is dissatisfied, one can then turn to the Political Parties’ Tribunal, followed by the Independent Electoral and Boundaries Commission.

We encourage all Kenyans to exhaust these mechanisms before turning to the courts. Parties to political disputes should take notice of the decisions by the Constitutional and Human Rights Division of the High Court in referring matters to relevant tribunals rather than it being a first port of call. The interaction between the Judiciary and the tribunals may not be neat at the moment, but we are committed to ensuring that it is ironed out to promote alternative dispute resolution as decreed in the Constitution.

If every Kenyan upholds the rule of law, and the organs of justice are functioning as they should, there should be no need for an election petition. However, in the event that election petitions do surface, preparations are under way to ensure that they are dealt with in the most expeditious and judicious manner possible.

Even so, the Constitution and the law have assigned specific responsibilities to the courts at various levels. The Supreme Court will handle any petition arising out of the presidential election within 14 days. The High Court is expected to deal with all other petitions arising from elections for the women’s representatives, senators, governors and assembly representatives at the county level, as well as for national assembly seats. The Court of Appeal has jurisdiction over all appeals arising from these disputes. The magistrates’ courts will process electoral offences.

The Constitution commands that all election petitions must be concluded within six months.

With the Judiciary’s task thus set out, we recognise that election petitions have the potential to impact the wider justice delivery agenda. The number of judges needed to handle the disputes as well as the volume of cases could be higher than anything Kenya has ever dealt with. We are aware that Kenyans are looking up to the Judiciary to resolve any disputes that arise from the elections.

All the matters arising from the delimitation of electoral units at the constituency and ward level also fall under the category of electoral disputes the Judiciary must resolve. In this particular instance, they raise fundamental constitutional questions. They have, therefore, been consolidated and will be heard by a five-judge bench, and disposed of within the three-month constitutional deadline.

Going forward, we recognise that the challenges ahead require careful consideration. In order to prepare the Judiciary for the exceptional roles that it is expected to play in the forthcoming elections, we intend to conduct intensive training for judges and magistrates who are expected to handle election offences and disputes in order to enhance their skills and knowledge.

As part of the Judiciary’s preparations to create and implement effective mechanisms and capacity to resolve electoral disputes and deal with offences, I am pleased to announce the appointment of an eight-member team to design and execute a Judiciary programme to build the capacity of judges, magistrates and other judicial officers on electoral matters, and suggest ways of working with other stakeholders. The Committee will operate under the aegis of the Judiciary Training Institute but report to the Chief Justice.

Mr Justice Mohammed Ibrahim of the Supreme Court will chair the Judiciary Working Committee on Elections. The Committee will also comprise Justice (Prof) SmokinWanjala of the Supreme Court, Mr Justice David Maraga of the Court of Appeal, Mr Justice Paul KiharaKariuki of the Judiciary Training Institute and the Court of Appeal, Lady Justice Helen Omondi and Mr Justice David Majanja of the High Court, as well as Hon. RoseylnOganyo, Senior Principal Magistrate, and Hon. LilianArika, Principal Magistrate, and both based at the Milimani Law Courts in Nairobi.

The Working Committee’s terms of reference are to:

1. Advise the Judiciary on administrative arrangements and measures for the efficient disposal of election related disputes.
2. Develop and implement, in conjunction with the Judiciary Training Institute, a training programme for the efficient and effective management of election disputes for judicial officers and support staff.
3. Develop and design a system for monitoring and evaluating the management and administration of election-related disputes in court.
4. Liaise and coordinate with stakeholders to ensure efficient, effective and timely resolution of election related disputes and offences.
5. Advise the Judiciary on the information that needs to be developed and disseminated to the public on the avenues open to it to pursue electoral disputes and the approaches that will be employed.

It is our intention to demonstrate that Kenya is serious about respecting, promoting and protecting the fundamental right to vote. That is why we are taking this early step to establish effective and efficient structures to resolve electoral disputes and deal with election-related offences. We expect concomitant action from the other actors in the election and justice sector so that it is never in dispute that our elections were free and fair.

Thank you.

Dr. Willy Mutunga, SC, D. Jur, EGH

Chief Justice and President of the Supreme Court of Kenya.

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