Justice_Ojwang Address made before the Central Student Representative Council of the University of the Free State of South Africa, on the occasion of a leadership Tour, Nairobi, 19 June 2013 By The Hon. Justice (Prof.) J. B. Ojwang, Justice of the Supreme Court of Kenya CONTENTS
  1. INTRODUCTION
  2. THE CONSTITUTION OF KENYA, 2010: PRINCIPLES AND INSTITUTIONS OF GOVERNANCE
  3. THE NATIONAL ELECTIONS OF 4TH MARCH, 2013
  4. AFTERMATH: THE PRESIDENTIAL ELECTION AND THE PETITION
  5. THE JUDICIARY AND THE CONSTITUTIONAL ORDER: REFLECTIONS
INTRODUCTION The African continent has, in the last two decades, come up to fateful new experiences in the domain of governance: in the management of the public affairs, of citizens, through institutions set for targeted results – institutions that make a claim to legitimacy. Up to about half a century since the end of the colonial era, or of imposed governance systems, every African country today faces the veritable challenge of rationalizing its institutions, and establishing a direction such as befits the legitimate purposes of self-sustaining nationhood. The foundations of such a progressive order must be built around core public institutions and processes: those of law-making; programming, management and norm-implementation; and of dispute settlement. And such institutions and processes must enjoy legitimacy. Such institutions and processes, as experience shows, will operate either on the basis of popular expressions of choice and designation, or of selection, conducted with perceived rationality and fairness.  Thus, as is well recognized, the machinery of governance will rest upon two broad types of institutions: majoritarian, and non-majoritarian.  The two have a complementary role: the first category bearing the very face of free governance by the citizens themselves; the second category serving as the professional and legitimate conciliator and arbiter, when the motions of majoritarianism fall into conflict, confrontation or disorder. Today, we are concerned with the majoritarian institutions: those that are set up through the electoral process. More specifically, we are concerned with an instance of the electoral process, in its contribution to the evolution of nationhood, in conditions of diversity. “Diversity” is thus defined in Black’s Law Dictionary1: “….Ethnic, socioeconomic, and gender heterogeneity within a group; the combination within a population of people with different backgrounds.” Most countries of Africa are typical case-studies in diversity, in particular: ethnic, racial, religious, cultural and linguistic, social and economic.  This is a major challenge, to all initiatives of arriving at some medium of the “good life”, upon which the schemes to facilitate democratic and progressive governance may be predicated.  Indeed, achieving the true democratic intent, in such a context, is a great deal more burdensome, than assuring equitable and legitimate governance in the highly-industrialised nations of the West.  This is the real challenge to any political-party platform acceding to State power, in popular elections, in most of Africa.  Diversity, thus, poses one of the main challenges to the majoritarian platform, in the scheme of governance. Against this background, I will give a short profile on the design of the Constitution of Kenya, 2010 before making reflections on the general elections which took place on 4th March, 2013. A. THE CONSTITUTION OF KENYA, 2010: PRINCIPLES AND INSTITUTIONS OF GOVERNANCE As compared to the earlier Constitutions – that of 1963 and that of 1969 (with its radical alterations by way of amendment, which resulted in an Executive structure minimally accountable) - Kenya’s Constitution of 2010 represents a major paradigm shift, with the people, democracy, human rights and rule of law as its watchwords.  The Constitution begins by declaring “the sovereignty of the people”2: “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.” It annexes the processes of sovereignty to democratic choice3: “The people may exercise their sovereign power either directly or through their democratically elected representatives.” The sanctity of “the people” and their entitlement, are consolidated in the largest part4, which is devoted to the Bill of Rights5, and which declares itself6 to be: “an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies”. Those entrusted with the task of interpretation of the Constitution, notably the courts, are required to adopt interpretations that promote – “the values that underlie an open and democratic society based on human dignity, equality, equity and freedom” 7. Falling under the Bill of Rights are political rights, which sanctify the role of the citizen in the establishment of the majoritarian scheme of governance8: “(1) Every citizen is free to make political choices, which includes the right– (a) to form, or participate in forming, a political party; (b) to participate in the activities of, or recruit members for, a political party; or (c) to campaign for a political party or cause”. Such guarantees of rights for the citizen are to be seen in the context of declared “national values and principles of governance”9; these include10: national unity [signalling commitment to the consolidation of nationhood]; the rule of law; democracy and participation of the people; human dignity; equity; social justice; equality; inclusiveness; human rights; non-discrimination; protection of the marginalized. The political effect of such progressive terms of the Constitution, must stand or fall on a single event: interpretation. The draftspersons were mindful of this question, and they thus provided11: “(1)  This Constitution shall be interpreted in a manner that – (a) promotes its purposes, values and principles; (b) advances the rule of law, and the human rights and fundamental freedoms of the Bill of Rights; (c) permits the development of the law; and (d) contributes to good governance”. The foregoing backcloth of principles and values focuses its light on the electoral process; the majoritarian agencies emanating therefrom; and the judicial (non-majoritarian) role in relation to the electoral process.  Such is the context in which Kenya’s general elections – including the Presidential elections – of 4th March, 2013 took place. B. THE NATIONAL ELECTIONS OF 4TH MARCH, 2013 (a) Context If the promulgation of the Constitution on 27th August, 2010 marked a signal achievement in the democratization struggle, the attainment would remain unaccomplished, but with the inaugural elections to bring to life the institutions of governance, namely: the Presidency; the Senate; the National Assembly; the gubernatorial offices; the County Assemblies. The elections of 4th March, 2013 therefore, were not ordinary elections; they were institution-building elections, upon which the course of implementation of the Constitution, for the future, depended. (b) The Conduct of Elections It is, firstly, to be noted that the elections of 4th March, 2013 were the broadest, and the most challenging ever, in the history of Kenya.  It goes without saying that all agencies involved in the nominative and elective processes were tested to the limit, and, as beginners, they cannot claim perfection in the way in which they executed the electoral process.  At this moment, hundreds of petitions are running in the Courts all over the country, in which election losers are contesting the outcome as declared, following the counting of votes. The most remarkable of the election contests was that in respect of the Presidency; and this will be the climax of my presentation. C.     AFTERMATH: THE PRESIDENTIAL ELECTION AND THE PETITION (a) The Law Whereas the numerous petitions over election-outcomes have been lodged in a wide range of Courts, notably the High Court, the jurisdiction in respect of Presidential election is exclusively vested in the Supreme Court.  As an exception to the general principle that the Supreme Court is the ultimate appellate Court, the Constitution12 provides that: “The Supreme Court shall have – (a) exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140…..” The said Article 140 is concerned with “questions as to validity of presidential election”, and provides as follows: “(1)   A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election. “(2)   Within fourteen days after the filing of a petition under clause (1), the Supreme Court shall hear and determine the petition and its decision shall be final. “(3)   If the Supreme Court determines the election of the President-elect to be invalid, a fresh election shall be held within sixty days after the determination”. The general constitutional significance of the Supreme Court’s decision, at the end of the election-petition proceedings, is clear, as it determines whether or not a swearing-in ceremony is to take place.  The Constitution provides13: “The President-elect shall be sworn in on the first Tuesday following – …………… (b) the seventh day following the date on which the court renders a decision declaring the election to be valid, if any petition has been filed under Article 140.” (b) Elections of 4th March, 2013, and the Presidential Election Petition The first national elections under the new Constitution entailed still more complications.  The public agency responsible for the conduct of elections, the Independent Electoral and Boundaries Commission (IEBC) was, for the first time, endeavouring to rely on certain technologies: biometric voter registration (BVR), at the stage of voter registration; electronic voter identification (EVID), on polling day; and electronic results transmission system (RTS), during vote-tallying. The voter–registration exercise began on 19th November, 2012 ending with the registration of approximately 14 million voters, for a national population of about 40 million.  A record 86% of the registered voters turned up at the polling stations, and cast their votes, on 4th March, 2013.  Thereafter, IEBC immediately set upon the task of vote-tallying, culminating in the public announcement of results. Mr. Issack Hassan, the Chairman of IEBC, on 9th March, 2013 announced the votes received by each of the Presidential election candidates.  Mr. Uhuru Kenyatta had received 6,173,433 votes out of a total of 12,338,667 votes cast – that is, 50.07% of all the votes cast; and the runner-up, Mr. Raila Odinga had received 5,340,546 votes – that is 43.31% of all the votes cast.  On that basis, and pursuant to Article 138 (4) of the Constitution, Mr. Hassan declared Mr. Uhuru Kenyatta as the President-elect. (c) Election Petitions The declaration of election outcomes sparked a set of petitions: (i) by Petition No.3 of 2003, persons who had not been candidates in the Presidential election, Moses Kiarie Kuria, Denis Njue Itumbi and Florence Jematiah Sergon contending that the decision taken by IEBC to include “rejected votes” in the final tally had had a prejudicial effect on the percentage of votes won by Mr. Uhuru Kenyatta.  The petitions contended that the actions of IEBC were in contravention of Articles 36 (b) and 138(c) of the Constitution, and Rule 77(1) of the Elections (General) Regulations, 2012; (ii) by Petition No.4 of 2013, Gladwell Wathoni Otieno and Zahid Rajan brought their case against IEBC, its Chairman, Mr. Uhuru Kenyatta as the declared President-elect, and Mr. William Ruto as the declared Deputy President-elect:  the allegations being that the Presidential election was not conducted substantially in accordance with the Constitution, the Elections Act and the governing regulations – in that the voter register was not properly maintained; and that IEBC failed to meet “the mandatory legal requirement to electronically transmit election results”; (iii) by Petition No. 5 of 2013, Mr. Odinga moved against IEBC, its Chairman, Mr. Uhuru Kenyatta and Mr. William Ruto, disputing the validity of the declared election results, on the basis that “the electoral process was so fundamentally flawed that it precluded the possibility of discerning whether the Presidential results declared were lawful”; it was contended that IEBC failed to carry out a transparent, verifiable, accurate and accountable election as required under Articles 81, 83 and 88 of the Constitution. The Supreme Court directed that the three Petitions be consolidated and heard as one, with the last Petition serving as the pilot file.  The issues in the petitions, after consolidation, disclosed one fundamental cause:  Whether Mr. Uhuru Kenyatta and Mr. William Ruto were validly elected and declared as President-elect and Deputy President-elect, respectively. Within the rigidly-defined time-frames of the Constitution, the matter was intensively heard, on the basis of sworn statements and the submissions of counsel. (d) The Presidential Election Petitions:  Determination by the Supreme Court The matter was vigorously canvassed before the Supreme Court.  Thereafter the Court considered the evidence of merit, and the submissions of counsel, prefacing its decision as follows14: “The evidence in the consolidated Petition has been laid out in detail, and is the primary basis for disposing of the several prayers.  The Court has also considered various questions of law and of general constitutional principle, upon which the Petitioners rely ……. As such broader foundations to the cases concerned specific prayers, and as the relevant issues were squarely canvassed by counsel, we were able to make our findings, and embody the same at various stages in this Judgment. “But, ultimately, the primary issue is the claim made by the Petitioners in Petitions No. 4 and No. 5; and these resolve into the issue in Petition No. 5, namely: Must the certificate of election as President-elect, issued to the 3rd Respondent, be cancelled; and should an Order be made for a fresh Presidential election to take place in Kenya?” The Court thus set the context in which the Presidential election, in the context of the evidence on record, should be perceived15: “An alleged breach of an electoral law, which leads to a perceived loss by a candidate, as in the Presidential election which has led to this Petition, takes different considerations.  The office of President is the focal point of political leadership, and, therefore, a critical constitutional office.  This office is one of the main offices which, in a democratic system, are constituted strictly on the basis of majoritarian expression.  The whole national population has a clear interest in the occupancy of this office which, indeed, they themselves renew from time to time, through the popular vote.” Quite in departure from the well known American case, Bush v. Al Gore16 in which all credible account17, shows the Supreme Court Judges to have had definite lines of political preference, the Kenyan Supreme Court took a different course, thus expressing itself in unanimity18: “As a basic principle, it should not be for the Court to determine  who comes to occupy the Presidential office; save that this Court, as the ultimate judicial forum, entrusted under the Supreme Court Act, 2011 (Act No. 7 of 2011) with the obligation to ‘assert the supremacy of the Constitution and the sovereignty of the people of Kenya’ [s. 3(a)], must safeguard the electoral process and ensure that individuals accede to power in the Presidential office, only in compliance with the law regarding elections”. On these same lines of perception and reasoning, the Court further pronounced itself19: “We take judicial notice that Kenya, thanks to the relentlessness of the people’s democratic struggles, has recently enacted for herself the current Constitution, which assures for every citizen an opportunity for personal security and for self-actualization in a free environment.  The Judiciary in general, and this Supreme Court in particular, has a central role in the protection of that Constitution and in the realization of its fruits so these may inure to all within our borders; and in the exercise of that role, we choose to keep our latitude of judicial authority unclogged: so the Supreme Court may be trusted to have a watchful eye over the play of the Constitution in the fullest sense.  Even as we think it right that this Court should not be a limiting factor to the enjoyment of free political choices by the people, we hold ourselves ready to address and to resolve any grievances which flow from any breach of the Constitution, and the laws in force under its umbrella.” While noting that, “by no means can the conduct of this election be said to have been perfect”, the Court found no evidence laying out a case for orders of annulment.  The Court posed the question20: “Did the petitioner clearly and decisively show the conduct of the election to have been so devoid of merits, and so distorted as not to reflect the expression of the people’s electoral intent?” The Court asserted that21: “It is this broad test that should guide us in this kind of case, in deciding whether we should disturb the outcome of the Presidential election.” The Court thus held22: “In summary, the evidence, in our opinion, does not disclose any profound irregularity in the management of the electoral process, nor does it gravely impeach the mode of participation in the electoral process by any of the candidates who offered himself or herself before the voting public.  It is not evident, on the facts of this case, that the candidate declared as the President-elect had not obtained the basic vote-threshold justifying his being declared as such.” Consequently, the Supreme Court disallowed the Petition, and upheld the Presidential-election results as declared by IEBC on 9th March, 2013. D. THE JUDICIARY AND THE CONSTITUTIONAL ORDER:  REFLECTIONS If the history of Kenya prior to the Constitution of 2010 had obscured the Judiciary’s vital role in governance, this status quo has changed, a development most pointedly expressed in the recent Presidential-election Petition. In the current context, the stature of the Judiciary, in my opinion, coincides with the perception in my recent work, Ascendant Judiciary in East Africa23: “The judicial remit of interpretation of law is all-important, in any perception of governance powers under the Constitution.  That the law is the substratum of all lawful governance-action is axiomatic.  It is precisely this principle that assigns to the Judiciary the vital role of guardian of constitutionality and legality – and thus accords this organ the most treasured role in the design of the constitutional process.” The Presidential election of March 2013 was a prime test for the acceptability of a novel constitutional order; for transition from retrogression in governance, to sustainable democracy; for the institutionalisation of judicialism, and rule of law alongside democratic processes; and for the processes of electoral legitimacy.  If Kenya cannot  exactly yet be said to have won those vital tests, it is at least arguable that the Supreme Court’s decision in the recent Presidential election Petition has shown real progress towards success.  The Supreme Court (and the Judiciary in general) has demonstrated its even keel in resolving a major political-cum-social conflict, in a manner that invites tolerant acquiescence in the country at large.  It is a course towards common political perception; towards shared values; towards active nation-building, in conditions of fundamental diversity.  This is something positive, socially and politically constructive, emanating from the Kenyan Judiciary.  Only to this restrained extent, can the design and purpose of the Kenyan judiciary be perceived in veritable political terms:  otherwise, it remains valid to perceive the Kenyan judiciary as essentially an institution of the legal order, for the resolution of disputes by legitimate juridical designs. Notes
  1. B. A. Garner (ed.) (St. Paul, MN: Thomson, West, 2004, at p.512.
  2. Article 1(1).
  3. Article 1(2).
  4. Chapter 4.
  5. Articles 19-59.
  6. Article 19(1).
  7. Article 20(4)(a).
  8. Article 38.
  9. Article 10.
10. Article 10(c). 11.   Article 259. 12. Article 163(3). 13. Article 141(2)(b). 14. Paras. 295 and 296. 15. Paras. 298. 16. 531 U.S. (2000). 17.  See Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (New York: Anchor Books, 2008). 18. Para. 299. 19. Para. 301. 20. Para. 304. 21. Ibid. 22. Para. 306. 23. Jackton B. Ojwang, Ascendant Judiciary in East Africa (Nairobi: Strathmore University Press, 2013), at p. 26.