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Remarks Made During The Swearing-in Of The Members Of The Independent Electoral And Boundaries Commission (iebc)

By Hon. Dr. Willy Mutunga, SC
Chief Justice and President of the Supreme Court

14TH NOVEMBER, 2011

 

Almost five years ago, members of the then Electoral Commission of Kenya (ECK) stood before a Chief Justice and took an oath of office similar to the one you have just taken today. In the text and spirit of that oath, just as in this one, was a solemn commitment to duty to serve with dedication, fairness, and in a manner that is faithful to the Constitution and the law of the land.

The failure of the 2007 General Elections was a manifestation of an oath betrayed. The consequences of this betrayal were harmful to our society, politics, and economy. It was a constitutional, legal, political and managerial disaster a repeat of which you must do all within your power and ability to avoid. There is no higher crime an individual, an institution, or a group of people can commit than one that subverts the sovereign will of the people, or whether through incompetence, negligence or design make the expression of this will inarticulate.

There is no doubt in my mind that the failure to competently manage the 2007 elections, and the refusal to take the subsequent dispute to the Judiciary were an eloquent statement of loss of confidence by the public and its leadership in these two institutions. Both of our institutions must consciously rebuild and reclaim public confidence and trust. This will not happen through mere proclamations but through cumulative actions and decisions that we take in the run up to and during the General Elections. For public confidence is earned through proper institutional conduct that passes the credibility test rather than through clever institutional guile that merely passes the test of spin. We have a discerning and alert populace able to see through our actions, however cleverly disguised. But even if they weren’t, the responsibility to do and act right in their interest would not be any less. In fact, it would be higher. This is part of the reason that we take the oaths that we do.

It is imperative that constitutional office holders, such as yourselves, understand the significance of the oaths they take. These are not idle rituals only required by the Constitution. Oaths are not ornamental citations to be treated as adjuncts to your job descriptions. They are a serious expression of legal and moral commitments. By taking an oath, beyond its legal bond, you also make a bond with your conscience. You must therefore treat this oath with the seriousness that it deserves for a breach of it not only constitutes a breach of the law. It is also a breach of your conscience, a transgression of your personal honor. But even more fundamentally, it is a breach of the huge trust that the people of this Republic have placed on you.

Our democratic and developmental transition is promising but still fragile. We have an obligation to nurture, protect and promote it. The greatness of a nation is determined by the quality of the institutions that it builds. To consolidate the gains already made and realise the ambitions and aspirations already articulated it is incumbent upon all of us who are in positions of responsibility to be true to our constitutional and conscientious calling. The responsibility that the leadership bears in this regard is immense.

I must mention that the IEBC must act strictly according to the Constitution and the law. It must execute its constitutional mandate without any fudging or variation – including the application of Chapter Six and Chapter Seven. The Constitution has not given you independence and tenurial security so that you can cave in and cower; but rather to be confident and bold in doing what it mandates. I offer the guarantee of the Judiciary that when it comes to the protection and upholding of the Constitution, we shall play our part without fear or favour. It is a commitment I give the country. Kenyans did not fight and vote for a new Constitution so that it can become a political toy; they did because in all its provisions and articles they saw codified the aspirations and struggles of a people. Therefore, all institutions and individuals, either in the interpretation, implementation or application of the Constitution must not seek to defer or defeat this dream.

Kenyans now shift their focus to IEBC with the expectation that it will deliver a free, fair and peaceful process at the next General Elections. This you will only achieve if you uphold fidelity to the Constitution by which you all swear today. The Constitution is precise about the conduct of elections and clear on the role of the Commission in the management of political processes. Doubtless, there will be many disputes that will come before you as a Commission many will find their way into the courts. In the courts, some decisions may not be popular but I want to assure you that adjudication will be fair. This is the true essence of the rule of law.

I know that there are matters before the court on the determination of the election date. The Supreme Court and the Constitutional and Human Rights Division of the High Court will soon be making a determination of these matters. I believe that the IEBC will follow the directions of the Court on these important issues. I wish to urge that you must move with speed and ensure that necessary preparations for successful elections are held, whenever they will be decided to be held.

Let me conclude by wishing you all the best in this important duty the nation has placed upon your shoulders. You have a duty to demonstrate to the Selection Panel that interviewed and proposed you, the public that participated in those interviews, the President and Prime Minister who nominated you, and the House that endorsed you through confirmation hearings, that the decision that they made to appoint you to this high office was the right one. To do otherwise will not just be a personal failure but, more tragically, a failure to the nation – a nation so earnest and urgent in its desire to join the commonwealth of functional democracies in the world. Choose which side of history you want to belong to.

Thank you.

Hon. Dr. Willy Mutunga, SC

Chief Justice and President of the Supreme Court

Republic of Kenya

14th November, 2011

Supreme Court Buildings, Nairobi.

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