DOCSLIB.ORG

1 Chapter 25 Presidential and Premier Election

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
1 Chapter 25 Presidential and Premier Election CHAPTER 25 PRESIDENTIAL AND PREMIER ELECTION, SUCCESSION AND TRANSITION IN 2017 AND BEYOND: ELECTORAL JUSTICE, POPULAR SOVEREIGNTY, PROTESTS, REVOLUTIONS, AND SECESSION DEBATES AND MOVEMENTS This Draft Chapter may be cited as: Ben Sihanya (forthcoming 2019) “Presidential and Premier election, Succession and Transition in 2017 and Beyond: Electoral Justice, Popular Sovereignty, Protests, Revolutions, and Secession Debates and Movements,” in Ben Sihanya (2019) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa Vol. 1: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya, Chapter 21. 25.1 Reconceptualising and problematising Kenya’s 2017 Presidential Electoral and Transition Process There are three core overarching questions in this Chapter. First, what were the core questions and issues in the 2017 presidential electoral cycle and transition in Kenya? Second, how was popular sovereignty reconceptualised, problematized and contextualized or operationalized in the quest for socio-economic and electoral justice? Third, what lessons does Kenya and the international community learn from Kenya’s secession debate and the quest for constitutional reform, implementation and enforcement after the 2017 presidential electoral, political, governance and constitutional crisis? In conceptualising and problematising Kenya’s 2017 presidential electoral and transition process, this Chapter adopts an Afro-Kenyanist methodology. In spite of the electoral, political and constitutional abuses discussed in this book generally and especially in Chapter ….?1 below, about 78% per cent of the registered Kenyan voters went to the August 8, 2017 polls determined that their vote would count and that their quest for change would be fulfilled. The (manual) voting process was largely free, fair, secure and transparent and violence free (as required under Articles 1, 10, 38, 81, and 86 of the Constitution). But it was largely non-accurate, and non-accountable contrary to the same constitutional provisions. Significantly, there were deliberate cases of constitutional non-compliance, illegalities, and irregularities including names missing from the register of voters and (pre) stamped ballots, hence a failure to comply with the doctrines of universal suffrage (Art 38 of the Constitution) and fair administrative action (Art 47 of the Constitution). The main challenges arose when the Independent Electoral and Boundaries Commission (IEBC) refused or failed to follow the constitutional, legal and regulatory process and procedure of transmitting presidential election results through deliberate sabotage and manipulation of the Kenya Integrated Electronic Elections Management System (KIE(E)MS) and process. 1 Chapter 20 of CODRALKA 1 1 These and other cases of constitutional non-compliance illegality and irregularities were articulated in the presidential election petition filed by Raila Amolo Odinga, the presidential candidate, and Stephen Kalonzo Musyoka, the running mate of the National Super Alliance (NASA) in Hon Raila Odinga & Hon Stephen Kalonzo Musyoka v. IEBC & 2 Others.2 One of the major findings of the petition was that IEBC servers and the password or the Chair of the IEBC, Mr Wafula Chebukati had been illegally accessed by “strangers” who manipulated the system leading to the announcement of Kenyatta of the Jubilee Party as President. The Supreme Court nullified the presidential election and ordered a fresh presidential election. The 4-2 determination was rendered in the following three-pronged decision: First, “A declaration is hereby issued that the Presidential Election held on 8th August 2017 was not conducted in accordance with the Constitution and the applicable law rendering the declared result invalid, null and void.”3 Second, “A declaration is hereby issued that the 3rd Respondent was not validly declared as the President elect and that the declaration is invalid, null and void.” Third, “An order is hereby issued directing the 1st Respondent to organize and conduct a fresh Presidential Election in strict conformity with the Constitution and the applicable election laws within 60 days of this deter mination under Article 140(3) of the Constitution.”4 As discussed below, President Uhuru Kenyatta and IEBC, with explicit or implicit support from some of Kenya’s development partners and transnational corporations (TNCs) ensured that no reforms were effected before the October 26, 2017 so-called re-run (?) it turned out to be Kenyatta coronation or Jubilee referendum. 25.2 Contextualising Kenya’s 2017 Electoral and Transition Process In this context, Kenyans focused on discussing three options: First, the immediate conduct of a presidential electoral justice through the realization of free, fair and accountable elections under a restructured IEBC. Second, the installation of a legitimate (people’s) President through the direct exercise of popular sovereignty under article 15 aka people power or popular uprising. 2 Hon Raila Odinga & Hon Stephen Kalonzo Musyoka v. Independent Electoral & Boundaries Commission, Wafula Chebukati and Uhuru Kenyatta, Presidential Election Petition No. 1 of 2017. The decision was a constitutional and political revolution or thunderbolt that reverberated throughout Kenya, EAC Africa and the world. It helped elaborate the myth of free and fair that Uhuru Kenyatta, the Government and ...Government observers had proposed. 3 The majority consisted of CJ David, Maraga, DCJ Philomena Mwilu, Justice Smokin Wanjala and Justice Isaac Lenaola. Justices Jackton B. Ojwang’ and Njoki Ndung’u predictably dissented. 4 The most dramatic, memorable and widely quoted aspect of the judgment was Chief Justice David Maraga summary on September 1, 2018, which also formed a core part of the full majority decision handed down on 20/9/2018. 5 Article 1 provides for sovereignty of the people. Art (1) states that “all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.” 2 Third, secession to allow the Kenyatta or Kikuyu Uthamakistan Kingdom6 to finally separate from the Kenya People’s Republic, and for Kenyans to enjoy self determination. This discourse is guided by the Kenyan and African experience on presidential election, governance, transition and secession as well as broad-based works of four Western scholars and at least four contemporary African scholars. The Western scholars are first, Dr Karl Heinrich Marx on fundamental change or “economic determinism” and class or social struggle to address economic, social and political injustice. Second, Prof Max Weber who taught on the sources of and quest for legitimacy or legitimate authority as well as cultural change as a foundation of legality.7 Third, Prof Hans Kelsen wrote on sudden or revolutionary change and necessity as a basis validity of normative, constitutional and political (or presidential transition). And fourth, Havard constitutional Prof Larry Lessig, especially on the (American) presidency and restructuring the Republic.8 The four key African scholars are first, Prof Ben Nwabueze on Constitutional Democracy in Nigeria and Africa. Second, Prof Yash Pal Ghai on ethnicity and the Kenyan system of governance, legitimacy and the rule of law, as well as the 2017 presidential transition.9 Third, ES Atieno Odhiambo on tribalism, marginalisation, the construction of Kikuyu hegemony.10 And fourth, Ben Sihanya’s work on the quest for socio-economic, political and electoral justice in a Kikuyunised Kenya. So which combination of the three options will Kenya pursue now or should the circumstances of 2017 recur? Free, fair and accountable elections? Popular uprising to install a legitimate (or people’s) president? Or separation and secession? Who have been the key players in Kenya’s socio-economic, political and constitutional gridlock? What are their interests? How will these be resolved in the public interest and in a manner consistent with electoral justice, constitutional democracy and popular sovereignty in Kenya?11 25.3 Why IEBC must be restructured for free, fair and accountable election or referendum At least three issues underline the need for fundamental restructuring or reorganization of IEBC in terms of the composition of commissioners, executive, human resources and technology or ICT. First, on September 1, 2017, the Supreme Court of Kenya invalidated, nullified and voided the August 8 presidential election and (not just numerical aspect of the result or outcome). In a 4-2 6 See authorities on origin and development of the Kikuyu uthamaki, dynasty or kingdom 7 See also Chapters……(“Theorizing and methodology of comparative constitutional democracy and administrative law…) of CODRALKA 1……Chapter 2 of CODRALKA 2. 8 See Lessig and Sustain, The President and the Administration…..See Lessig, Republic lost. 9 See also Chapters 20 OF CODRALKA 1; and 14 of CODRALKA 2. 10 See Chapter 1. 11 Chapter 15 CODRALKA 2 addresses similar and related questions with regard to the March 9, 2018 rapprochement or “handshake” between Raila Odinga and Uhuru Kenyatta. 3 determination and judgment, the Supreme Court found IEBC had committed illegalities and irregularities that rendered the entire process, including the declaration of Uhuru Kenyatta as President “invalid, null and void.” The majority consisted of Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu, and Justice Smokin Wanjala
Load more

Recommended publications
  • Kenya's Supreme Court
    Kenya’s Supreme Court: Old Wine in New Bottles? By Special Correspondent As the six Supreme Court judges were adjudicating Kenya’s first presidential election petition in March 2013, Justice Kalpana Hasmukhrai Rawal was waiting for a new president to take office and the newly elected National Assembly to convene so that her nomination as Deputy Chief Justice could move forward. The Judicial Service Commission (JSC) had settled on her appointment after interviewing a shortlist of applicants in February 2013. The Judges and Magistrates Vetting Board had earlier found her to be suitable to continue serving as a Court of Appeal judge. Justice Rawal eventually joined the Supreme Court on 3 June 2013. Two years later, Justice Rawal became the second Deputy Chief Justice (after Nancy Baraza, who resigned after she was heavily criticised for abusing her authority by threatening a security guard after the guard demanded to search her at a mall) to be embroiled in controversy. In 2015, Rawal challenged a notice that she retire at the age of 70. Around the same time, the then Chief Justice, Dr Willy Mutunga, would announce that he wanted to retire early so that the next Chief Justice would be appointed well ahead of the next election. In May 2014, Justice Philip Kiptoo Tunoi and High Court judge David Onyancha challenged the JSC’s decision to retire them at the age of 70. They argued that they were entitled to serve until they reached the age of 74 because they had been first appointed judges as under the old constitution. What seemed like a simple question about the retirement age of judges led to an unprecedented breakdown in the collegiate working atmosphere among the Supreme Court judges that had been maintained during the proceedings of the presidential election petition.
    [Show full text]
  • Special Issue the Kenya Gazette
    SPECIAL ISSUE THE KENYA GAZETTE Published by Authority of the Republic of Kenya (Registered as a Newspaper at the G.P.O.) Vol. CXV_No. 64 NAIROBI, 19th April, 2013 Price Sh. 60 GAZETTE NOTICE NO. 5381 THE ELECTIONS ACT (No. 24 of 2011) THE ELECTIONS (PARLIAMENTARY AND COUNTY ELECTIONS) PETITION RULES, 2013 ELECTION PETITIONS, 2013 IN EXERCISE of the powers conferred by section 75 of the Elections Act and Rule 6 of the Elections (Parliamentary and County Elections) Petition Rules, 2013, the Chief Justice of the Republic of Kenya directs that the election petitions whose details are given hereunder shall be heard in the election courts comprising of the judges and magistrates listed and sitting at the court stations indicated in the schedule below. SCHEDULE No. Election Petition Petitioner(s) Respondent(s) Electoral Area Election Court Court Station No. BUNGOMA SENATOR Bungoma High Musikari Nazi Kombo Moses Masika Wetangula Senator, Bungoma Justice Francis Bungoma Court Petition IEBC County Muthuku Gikonyo No. 3 of 2013 Madahana Mbayah MEMBER OF PARLIAMENT Bungoma High Moses Wanjala IEBC Member of Parliament, Justice Francis Bungoma Court Petition Lukoye Bernard Alfred Wekesa Webuye East Muthuku Gikonyo No. 2 of 2013 Sambu Constituency, Bungoma Joyce Wamalwa, County Returning Officer Bungoma High John Murumba Chikati I.E.B.C Member of Parliament, Justice Francis Bungoma Court Petition Returning Officer Tongaren Constituency, Muthuku Gikonyo No. 4 of 2013 Eseli Simiyu Bungoma County Bungoma High Philip Mukui Wasike James Lusweti Mukwe Member of Parliament, Justice Hellen A. Bungoma Court Petition IEBC Kabuchai Constituency, Omondi No. 5 of 2013 Silas Rotich Bungoma County Bungoma High Joash Wamangoli IEBC Member of Parliament, Justice Hellen A.
    [Show full text]
  • Governance Assessment Kenya 2016.Pdf
    GOVERNANCE ASSESSMENT KENYA: JANUARY 2013 – JULY 2016 Kenya: Governance Assessment GOVERNANCE ASSESSMENT Kenya: January 2013 – July 2016 Roland Ebole and Morris Odhiambo1 1 Introduction This report focuses on politically significant developments in Kenya from 2013, when the country held its first general elections under the 2010 constitution. The constitution is considered to have markedly enhanced protection of basic rights, significantly constrained executive power, and provides limited devolution of powers across 47 newly created county governments.2 In 2013, Kenya held its first general election under the 2010 constitution. Kenyans cast their votes for president, national and county-level representatives, female representatives to the National Assembly, and governors. With 50.5% of the vote, Uhuru Kenyatta of the National Alliance (TNA), backed by the Jubilee Alliance, won the presidency. His opponent, Raila Odinga of the Orange Democratic Movement (ODM), backed by the Coalition for Reforms and Democracy (CORD), was second with 43.7%. The election of governors and local assemblies strengthened the position of county governments. Female representatives to the National Assembly were elected in all 47 counties3 while 16 more were nominated to the Senate.4 Following the vote, CORD and a civil society organization (CSO) challenged the outcome of the presidential election at the Supreme Court,5 which had only 14 days to consider their petition under the constitution.6 Moreover, the pay scale for members of parliament set by the Salaries and Remuneration Commission was rejected by legislators, forcing the SRC to approve higher salaries.7 Implementation of the constitution and additional reforms continued, including the vetting of police officers by the National Police Service Commission (NPSC) and scrutiny of judges and magistrates by the Judges and Magistrates Vetting Board (JMVB).
    [Show full text]
  • Judging the Judges: Who Are the Supreme Court Justices?
    By Apollo Mboya If there is a jurisdiction that the Justices of the Supreme Court of Kenya curse is the court’s exclusive original jurisdiction to hear and determine presidential election petitions. It is both legal and political but politics reign supreme. In a highly divided country, the court will be doomed whichever way it rules. Former Chief Justice Dr. Willy Mutunga, conscious of the impact of “political jurisdiction” on the courts, expressed his frustrations in a public forum that courts ought not handle election disputes but instead politicians should “deal with their own shit” elsewhere. In his dissenting opinion in Bush v. Gore, Justice Stevens, underscoring CJ Mutunga’s thinking sympathized with the Supreme Court of the United States and indeed the judiciary following the highly disputed 2001 election dispute between George Bush and Al Gore opining as follows: Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law. Although SCOTUS does not have exclusive jurisdiction on presidential election dispute as Kenya’s, Bush v. Gore has been the court’s sore thumb that is thought to have led to a “court generated president”. Erwin Chemerinsky in his book The Case Against the Supreme Court notes: Bush v. Gore obviously cost the Supreme Court in terms of credibility. More than forty-nine million people who voted for Al Gore, and likely almost all of them regard the Court’s decision as a partisan ruling by a Republican majority [judges] in favour of the Republican candidate.
    [Show full text]
  • COMPLEMENTARITY in PRACTICE Capacity Building for the Establishment of the International and Organised Crimes Division (IOCD) of the Kenyan High Court
    REPORT FINAL REPORT COMPLEMENTARITY IN PRACTICE Capacity Building for the Establishment of the International and Organised Crimes Division (IOCD) of the Kenyan High Court CONTACT WAYAMO FOUNDATION Prinzregentenstr.82 | 10717 Berlin | Germany [email protected] | www.wayamo.com Project completed with the financial support of theGerman Federal Foreign Office COMPLEMENTARITY IN PRACTICE COMPLEMENTARITY IN PRACTICE COMPLEMENTARITY IN PRACTICE: CAPACITY BUILDING FOR THE ESTABLISHMENT OF THE INTERNATIONAL AND ORGANISED CRIMES DIVISION (IOCD) OF THE KENYAN HIGH COURT December 2015 | Berlin, Germany Author: Bettina Ambach, Wayamo Foundation Wayamo Director Bettina Ambach and Kenya‘s Chief Justice Willy Mutunga. COLLABORATION WITH the Committee of the Judicial to establish the International Crimes JUDICIARY AND Service Commission on the Division (ICD) in the near future (the PLANNING PROCESS: establishment of an International name was subsequently changed Crimes Division in The High Court to the „International and Organised In May 2012, the Judicial Service of Kenya published the first Crimes Division,“ IOCD). It was clear Commission (JSC) of the Kenyan detailed report, which became that capacity-building measures Judiciary began to deliberate on the basis for all further discussion had to be organised for the relevant the possibility of operationalising on the establishment of the new actors, and legal discussions and the 2008 International Crimes Act. division. possible amendments had to As a consequence, a committee be initiated before the actual was set up to look into modalities of At a joint Wayamo & Institute establishment of the new division. establishing an international crimes for Peace and War Reporting division in the High Court. conference in November 2012, It is envisaged that the IOCD will Kenya‘s Chief Justice Dr.
    [Show full text]
  • National Assembly
    October 27, 2016 PARLIAMENTARY DEBATES 1 NATIONAL ASSEMBLY OFFICIAL REPORT Thursday, 27th October, 2016 The House met at 2.30 p.m. [The Speaker (Hon. Muturi) in the Chair] PRAYERS COMMUNICATION FROM THE CHAIR MEDIATION COMMITTEE ON ASSISTED REPRODUCTIVE TECHNOLOGY BILL Hon. Speaker: Hon. Members, you may recall that yesterday, Wednesday, 26th October 2016, I conveyed a Message from the Senate regarding its decision on the Assisted Reproductive Technology Bill, National Assembly Bill No.36 of 2014. In the Message, it is noted that the Bill was lost at the Second Reading on 19th October 2016 in the Senate. The effect of this is that the Bill now stands committed to a Mediation Committee in accordance to the provisions of Article 112 of the Constitution. Indeed, the Senate has already nominated five Senators to the aforesaid Mediation Committee. Hon. Members, arising from the above and in consultation with the leadership of the Majority Party and Minority Party in the House, I have appointed the following Members to represent the National Assembly in the Mediation Committee: Hon. Millie Odhiambo Mabona, MP. Hon. John Sakwa, MP. Hon. (Dr.) James Nyikal, MP. Hon. (Ms) Cecilia Ngetich, MP. Hon. (Ms) Florence Kajuju, MP. Hon. Members, the Mediation Committee is advised to expeditiously commence the process of developing an agreed version of the Bill in line with the provisions of Article 113 of the Constitution. Hon. Members, knowing that the House may be proceeding for some short recess, the Committee is encouraged to remember that it has a maximum of 30 days within which to complete its function.
    [Show full text]
  • Special Issue the Kenya Gazette
    SPECIAL ISSUE THE KENYA GAZETTE Published by Authority of the Republic of Kenya (Registered as a Newspaper at the G.P.O.) Vol. CXVIII—No. 101 NAIROBI, 30th August, 2016 Price Sh. 60 GAZETTE NOTICE NO. 6910 REVISED SCHEDULE OF INTERVIEWS FOR THE POSITION OF CHIEF JUSTICE, DEPUTY CHIEF JUSTICE AND JUDGE OF THE SUPREME COURT IT IS notified for general information that the Judicial Service Commission has revised the interview schedule for the positions of Chief Justice, Deputy Chief Justice and Judge of the Supreme Court as indicated below: Position of the Chief Justice: Name of Applicant I.D. /Passport No. Day/Date of Interview Time for the Interview Hon. Mr. Justice Alnashir R.M. Visram 10177186 Monday, 29th August, 2016 9.00 a.m. Hon. Mr. Justice Amraphael Msagha Mbogholi 5468691 Tuesday, 30th Agust, 2016 9.00 a.m. Hon. Mr. Justice David Kenani Maraga 0330884 Wednesday, 31st August, 2016 9.00 a.m. Philip Nzamba Kitonga 4839950 Thursday, 1st September, 2016 9.00 a.m. Hon. Lady Justice Roselyn Naliaka Nambuye 0213374 Friday, 2nd September, 2016 9.00 a.m. Hon. Justice Dr. Smokin Charles Wanjala 2093616 Saturday, 3rd September, 2016 9.00 a.m. Paul Andrew Kongani Udoto Kongani 20459152 Monday, 5th September, 2016 9.00 a.m. Hon. Mr. Justice (Rtd) Aaron Gitonga Ringera. 4826426 Tuesday, 6th September, 2016 9.00 a.m. Amb. Daniel Waisiko Wambura 10793375 Wednesday, 7th September, 2016 9.00 a.m. David Mwaure Waihiga 1889015 Thursday, 8th September, 2016 9.00 a.m. Hon. Justice Prof. Jackton Boma Ojwang 7112666 Monday, 12th Septernber, 2016 9.00 a.m.
    [Show full text]
  • Policy Briefing
    Policy Briefing Africa Briefing N°94 Nairobi/Brussels, 15 May 2013 Kenya After the Elections I. Overview Kenyan democracy was severely tested in the lead-up to, during and after the 4 March 2013 elections. On 9 March, following a tense but relatively peaceful election, the Independent Electoral and Boundaries Commission (IEBC) declared Jubilee Coali- tion’s Uhuru Kenyatta president-elect. He garnered 50.07 per cent of the vote – barely passing the threshold for a first round victory. His closest opponent, former Prime Minister Raila Odinga, challenged his victory in court, but despite allegations of irregularities and technical failures, the Supreme Court validated the election. Although Odinga accepted the ruling, his party and several civil society organisations questioned the election’s shortcomings and its impact on democracy. President Ken- yatta and his deputy, William Ruto, will have to restore confidence in the electoral process and show robust commitment to the implementation of the new constitution, in particular to devolution, land reform, the fight against corruption and national reconciliation. Failure to do so risks further polarising the country and alienating the international community. Despite some clashes preceding the vote, and following the court’s decision, the nation avoided a repeat of the 2007-2008 post-election violence. A number of fac- tors contributed to a predominantly peaceful election, including a general consensus between the political elite and the citizenry not to bring Kenya to the brink of civil war again. International pressure, in particular from the current International Crim- inal Court (ICC) cases, media self-censorship, restrictions on freedom of assembly, and deployment of security forces to potential hotspots also helped avert unrest.
    [Show full text]
  • The Kenya Gazette
    SPECIAL ISSUE THE KENYA GAZETTE Published by Authority of the Republic of Kenya (Registered as a Newspaperat the G.P.O.) Vol. CXV_No.64 NAIROBI, 19th April, 2013 Price Sh. 60 GAZETTE NOTICE No. 5381 THE ELECTIONS ACT (No. 24 of 2011) THE ELECTIONS (PARLIAMENTARY AND COUNTY ELECTIONS) PETITION RULES, 2013 ELECTION PETITIONS,2013 IN EXERCISE of the powers conferred by section 75 of the Elections Act and Rule 6 of the Elections (Parliamentary and County Elections) Petition Rules, 2013, the Chief Justice of the Republic of Kenya directs that the election petitions whose details are given hereunder shall be heard in the election courts comprising of the judges and magistrates listed andsitting at the court stations indicated in the schedule below. SCHEDULE No. Election Petition Petitioner(s) Respondent(s) Electoral Area Election Court Court Station No. BUNGOMA SENATOR Bungoma High Musikari Nazi Kombo Moses Masika Wetangula Senator, Bungoma Justice Francis Bungoma Court Petition IEBC County Muthuku Gikonyo No. 3 of 2013 Madahana Mbayah MEMBER OF PARLIAMENT Bungoma High Moses Wanjala IEBC Memberof Parliament, Justice Francis Bungoma Court Petition Lukoye Bernard Alfred Wekesa Webuye East Muthuku Gikonyo No. 2 of 2013 Sambu Constituency, Bungoma Joyce Wamalwa, County Returning Officer Bungoma High John Murumba Chikati! LE.B.C Memberof Parliament, Justice Francis Bungoma Court Petition Returning Officer Tongaren Constituency, Muthuku Gikonyo No. 4 of 2013 Eseli Simiyu Bungoma County Bungoma High Philip Mukui Wasike James Lusweti Mukwe Memberof Parliament, Justice Hellen A. Bungoma Court Petition IEBC Kabuchai Constituency, Omondi No. 5 of 2013 Silas Rotich Bungoma County Bungoma High Joash Wamangoli IEBC Memberof Parliament, Justice Hellen A.
    [Show full text]
  • Over-Turn Election Put the Supreme Court on Trial
    ISSUE NO. 30, OCTOBER 2017 OVER-TURN ELECTION PUT THE SUPREME COURT ON TRIAL Peter Kagwanja Kenya has made history. Its Supreme Court and a run-off on November 16. In Austria, made a rare ruling, annulling the re-election of where the presidential elections took place on President Uhuru Kenyatta in the August 8, April 24, 2016, the Supreme Court annulled the 2018 elections with a huge margin of 1.4 million results of a second-round run-off on May 22, votes. Blissfully, the ruling affirms Kenya as a 2016 paving the way for a revote on December new bona fide liberal democracy. But it also 4, 2016. reveals creeping ideological and jurisprudential divisions in our courts, likely to undermine This is the second ruling by the Supreme public perception of the impartiality of the Court, created by the 2010 constitution. The judiciary, exposing it to potential reprisals by first was a unanimous affirmation of the results sections of aggrieved political class. of the 2013 presidential elections. In contrast, the 2017 ruling was by a simple majority with Kenya becomes the first country in Africa, and strongly dissenting opinions. exceptionally very few in recent history, where a Supreme Court has over-turned officially Of the six judges involved, four—Chief Justice declared results of a presidential election. David Maraga, his deputy Lady Justice Philomena Mwilu, Justice Smokin Wanjala and It joins Maldive and Austria where the supreme Justice Isaac Lenaola—were of the opinion courts have recently overturned the will of the that ‘irregularities’ and ‘illegalities’ affected the people on legal and administrative conduct of the polls.
    [Show full text]
  • Chapter 3 Constitutional Values, Principles, and Policy
    CHAPTER 3 CONSTITUTIONAL VALUES, PRINCIPLES, AND POLICY: AGENCY, STRUCTURE, POLITICS AND CULTURE IN KENYA AND AFRICA This Draft Chapter may be cited as: Ben Sihanya (forthcoming 2020) “Constitutional values, principles, policy: and culture: Agency, structure, politics and culture in Kenya and Africa,” in Ben Sihanya (2020) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa Vol. 1: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya. 3.1 Values and principles of governance under the Constitution in Kenya and Africa The Constitution of Kenya is the organizing principle on popular sovereignty, nationhood, and statehood which we have discussed in Chapter 1 and 2 of CODRALKA 1.1 Constitutional values and principles provide a firm foundation for the governance of economic resources, political powers, and liberty. We adopt an Afro-Kenyanist methodology in integrating ethics, ethos, values, and principles into constitutional democracy to advance individual and group liberties as well as nationhood.2 These include mutual social responsibility…3Some of these are being considered in the debate on Building Bridges Initiative (BBI).4 Constitutional values and structure find expression and are enhanced through agency and structure. And some of the values and principles actually constitute structure to the extent that they have become national or institutional norms or culture. The Constitution of Kenya 2010 provides for national values and principles of governance under Article 10 (on national values and principles of governance), Art 201 (on values and principles of public finance) Art 232 (on values and principles of public service) and other specific articles.5 These shall bind all State organs, State officers, public officers and all persons in at least three contexts.
    [Show full text]
  • Industrial Court Judges, Eight High Court Judges, and 15 Environment and Land Court Judges
    2 State of the Judiciary Report, 2012 - 2013 Preface This is the Second Annual State of the Judiciary and Administration of Justice Report (SOJAR), which has been prepared in fulfillment of Section 5 (2) (b) of the Judicial Service Act. It covers the period July 1, 2012 to June 30, 2013, which coincides with the Government of Kenya financial year. It is also the second report since the launch of the Judiciary Transformation Framework (JTF) in May 2011. This has been an eventful year for the Judiciary. We have made marked progress but also witnessed serious challenges that have threatened the Judiciary’s transformation and shaken Hon. Dr. Willy Mutunga, D. Jur, SC, EGH, public confidence in the process. Chief Justice and President of the Supreme Court of Kenya Republic of Kenya. The Judiciary has had to make tough decisions in order to protect public resources. And whereas the process may look a little messy to the public eye, there is no doubt that these choices have been made and decisions taken in the public interest. The Judiciary remains supremely confident that it shall build on the achievements made and deal with the challenges posed while the compass of transformation remains firmly fixed. This has been the year of active implementation of the JTF at the macro level, and combined planning and implementation at the micro level, particularly within departments and directorates. We have been testing the objectives and viability of transformation and transition on the ground, and are learning important lessons. We have made progress, but we also made mistakes.
    [Show full text]