The judge who led the bench that heard Kenya’s first presidential petition at the apex court believes it is impossible to deliver a decision that all politicians will welcome.
Dr Willy Mutunga, who was the Chief Justice between 2011 and 2016, says even King Solomon, famed for his wisdom, won’t be appreciated by politicians and that courts should be ready to face a backlash, whichever way they rule. Through writings and speeches issued over the years – contained in Dr Mutunga’s book Beacons of Judiciary Transformation that was launched four months ago – the legal scholar reflects on the criticism directed at courts in Kenya and abroad, indicating that solving election disputes puts courts at an awkward place.
“Highly charged electoral contests have a tinge of irrationality to them. In politics, they are the equivalent of crimes of passion. The problem this poses to the Judiciary is that, regardless of the jurisprudential potency of their determinations, the losing side – which is nearly always half the population – will see no merit and will condemn the Judiciary anyway.”
Dr Mutunga spoke those words when addressing the Malawi Law Society in February 2019.“From the Kenyan experience, and even in the US in Gore v Bush, with presidential petitions, it is difficult to convince or impress the losing side, however persuasive the evidence or how solid the jurisprudence is. I doubt that even Solomon would have fared better,” he adds.
From the book, we bring you some of his thoughts on the interplay between courts, politicians and voters.
In a speech he gave in February 2019 during the launch of the post-election evaluation report on the 2017 polls, Dr Mutunga pointed out the folly of the political class seeking to control the electoral agency and judges—and the undesirable consequences.
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“There is no doubt that for a truly independent electoral commission to emerge, the political class needs to drop its practice of capturing and enslaving the commission, completely rendering it incapable of discharging its mandate. The political class wrongly sees itself as ‘owning’ every space, initiative, or decision in the country, a falsely ‘political class as sovereign’ notion that precipitates overreach and disregards the constitutive and operational autonomy of independent institutions such as the IEBC (Independent Electoral and Boundaries Commission), and even the Judiciary. The Constitution created independent institutions precisely to cure this mischief—as a necessary bulwark against the highly predictable proclivities and mission creep tendencies of the political class. We cannot create independent institutions then deny them that independence through bullying by the political class. And when those institutions fail because of such political infiltration, we turn around and blame them — and disband them.”
In another speech delivered in Vienna, Austria, in July 2019, Dr Mutunga spoke of the criticism towards the Supreme Court in regard to the 2017 General Election. “It is undeniable that all judges of the Supreme Court [were] under political attacks [after] four of their colleagues nullified the election of the current President and his deputy in 2017. The court also dismissed a petition against the fresh election that took place after the nullification. Both decisions of the Supreme Court showed clearly that it could protect its independence from either of the major factions of the ruling political elite. There is fear that the political elite wants a compliant Supreme Court.”
Problem with election technology
“The emergence of ‘IT Vendor Democracy’ is directly undermining the constitutional and operational independence of the electoral agencies and through their acts of nefarious data manipulation, the technology companies are determining electoral outcomes. The science and integrity of technology has become contested, and if technology experts cannot even agree on their own science, one can imagine the difficulties that this places the judges in. Technology is supposed to be an exact science but increasingly, just like law, answers to technological results questions begin with ‘it depends’. Two IT experts can give two different interpretations to the same exhibit!” Dr Mutunga said in a speech to the Malawi Law Society.
“Even though most jurisdictions have by law provided for use of technology in electoral systems, its increasing manipulation by international players risks us handing over the election of our leaders not to voters, parties or courts but to technology and data management companies,” he added.
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His words are still relevant in the 2022 General Election because in the Supreme Court case, whose hearings concluded on Friday, the petitioners’ case hinged on the technology deployed, its integrity and whether it enabled some players to manipulate data.
“IEBC must fight for its independence by rejecting patronage and partisan politics, and through its conduct, comportment and decisions, project and elevate its authority—effectively. The division the commission showed in the last election (2017) went a long way in sapping away public confidence,” said Dr Mutunga in a February 2019 speech. “I believe that if the IEBC were to assert its authority and competently and fairly manage the electoral process, the social costs of elections would considerably go down. Similarly, if leaders put national interests first, then the fear of exclusion that drives this desperation would evaporate.”
“There is an emerging, and a rapidly entrenching notion, that electors or voters no longer decide who their leaders are—neither in party primaries nor the general election itself. That leaders are decided either by party barons or by an electoral management agency or courts that can be manipulated. In Africa, there is a widening chasm between voting and counting—an irony of literacy where peasants (most voters) know how to peacefully cast their ballots during the day, but graduates and computers (presiding and returning officers) forget how to count on election night. There is urgency in changing this perception and/or reality and reclaim and reaffirm public faith in electoral politics. The IEBC has an oversized role in this regard, but only if it conducts itself competently, credibly and fairly,” said Dr Mutunga in his February 2019 speech during the launch of a post-election report.
As indicated in the book, Dr Mutunga is also a proponent of elections being held in a staggered fashion rather than having all six in one day and extending the period for hearing presidential election petitions from 14 days to 30.
He also feels that elections are too disruptive and that a solution needs to be found. “We shed too much blood, damage too many properties, steal too many votes, rupture too many friendships, destroy too many institutions, throw too many ethnic insults, worship too many false gods, spend too much money during our electoral contests,” he said in one of his speeches.
