By Herman Manyora and Bruno Otiato

Allow us to make a rather obvious prediction.

After the winner of the presidential election has been announced by the IEBC, a petition will be logged at the Supreme Court to challenge the results as announced by the IEBC. In that petition, the petitioner will, first, question the preparedness of IEBC and, second, provide evidence of cases of election malpractices.

This is an obvious observation considering the ‘abuse’ of the constitutional provisions that allow the petitioning of presidential elections. The provisions of article 140 notwithstanding, the Kenyan Supreme Court has over time cemented its place as a key player in the presidential elections. An analysis of how the Supreme Court has handled previous petitions indicates that the Court has opened itself to all manner of petitions challenging future presidential elections.

Although this provision was meant to prevent post-election violence, as witnessed in 2007, the players, and especially the Supreme Court, have made this provision a rule rather than an exception. Additionally, the fact that the key players in every presidential election, since the promulgation of the 2010 constitution, always run to the supreme court to contest the results, points to the reality that we have a long way to go if conducting a democratic election is anything to go by.

This reminds us of the sentiments of Professor Anyang Nyong’o in regard to our elections. The political scientist, who is also the serving governor of Kisumu County, in his book on presidential vs parliamentary democracy in Kenya, noted that the test of a democratic election is when the winners celebrate their victory and the losers accept the results as legitimate.

However, the Kenyan judiciary has, by and large, opened up itself to be the maker, interpreter and executor of laws. To some, the problem with the courts is that there are probably too many judges with a background in activism. As such, in the recent past, it has been impossible to formulate and or implement any public policy without a contrary opinion from the courts. To the judges in our courts, independence has been the word while interdependence has been overruled.

And as the Supreme Court prepares itself to handle the petitions coming before them, we invite them to make a judgment that would, over and above everything, discourage politicians from running to the courts to launder their bad mannerisms. Further, they must give a judgment that must compel constitutional independence offices like IEBC to conduct their mandate with the seriousness deserved.

We say so considering the argument that the failures exhibited by the players in the electoral process, especially IEBC, can be greatly attributed to the decisions of both the Mutunga and Maraga Supreme Court during the 2013 and 2017 presidential election petitions, respectively.

Truth be told. That we have failed to implement chapter six of the constitution is a consequence of the Mutunga Supreme Court when they failed to stand firm on the implementation of chapter six, especially on whether Uhuru and Ruto should have been on the ballot.

Further, that the IEBC is continuing to manage a general election in jest and with the clumsiness, as shown, is a failure of both the Mutunga and Maraga Supreme Court. While the Mutunga court entertained the irregularities as highlighted, especially by Kethi Kilonzo, during the 2013 petition to the court, Maraga failed to punish those responsible for the 2017 election mess. By allowing those who messed up the 2017 election to walk away without any form of punishment, the court only emboldened the rogue IEBC officials.

In practical terms, the court should, first, other than the binary decision of either nullifying the election or dismissing the petition, go further to make it painful to mess up with an election. As such, the court should prescribe a jail term for anyone found guilty of messing up with the elections. This should not be difficult considering that the supreme court has original jurisdiction and on its own motion can cause this to happen regardless of the outcome of the final verdict. Moreover, IEBC commissioners and or officers found not to have used their office to ensure that they execute their mandate as required, should be instructed to vacate their positions of responsibility. And this should apply to all the key players in the election cycle, for example, CUE, EACC, ODPP, DCI, etc.

And while at it, how has the judiciary continued to entertain the IEBC when, to the best of our knowledge, IEBC is yet to fully comply with the orders given by the supreme court during the Raila petition of 2017? The supreme court should make it clear, to all and sundry, that whoever comes to equity must come with clean hands.

Finally, and ultimately, the supreme court will continue receiving presidential petitions after every election unless it makes messing of an election extremely painful for anybody to mess with elections. This is only possible if the judiciary identifies the culprits and metes out very severe punishment. Only then shall we make it clear that the decision of who becomes the president of Kenya is made by the voter and not the supreme court.

Herman Manyora & Bruno Otiato
Herman is a lecturer at the University of Nairobi
Bruno is a Political Scientist

This article was published in The Standard, Sunday 21st August 2022