Dr. Willy Munyoki Mutunga
Chief Justice and President
Supreme Court of Kenya
Re: Petitions Challenging 2013 Presidential Election Results
Dear Hon. Justice Mutunga:
It’s going on to almost two years since you were appointed as our country’s Chief Justice and President of the Supreme Court.
Few, if any, will dispute the fact that you have thus far carried out your duties and responsibilities of the offices you hold consistent with the high expectations for the offices, especially in light of the fact you were specifically selected to spearhead the much needed and long overdue reforms for our judiciary.
Much as you and your colleagues continue on this journey of reforming the judiciary, our country finds herself at a cross-road yet again having just concluded elections Prime Minister Raila Odinga and his Cord coalition say was again flawed.
Indeed, several petitions are about to be filed with your court to challenge both the flaws in the electoral process as well as the results announced by the Independent Electoral and Boundaries Commission (IEBC) purporting to show a winner at the presidential level when every indication is there was no winner meeting the constitutional threshold for one to be sworn as president—at least the PM and Cord coalition is making that case and says will prove it in court.
These cases are needless to say significant and have grave implications for our beloved country in several different ways:
First, the petitions challenging the purported election of the ICC inductee Uhuru Kenyatta are unprecedented as we have never really had anything like it in the past and historic because whichever way you rule on them, Kenya will go in one direction or another, complete opposite of each other depending on the outcome.
Second, and in some way related to the unprecedented and historic nature of these petitions, how the Court decides on the main petition to be filed by Cord will be a test of whether the court has reformed and established itself to the point its decisions can be accepted as authoritative, legitimate and unbiased by both sides of the case or not, whether they agree with it or not.
To be sure, decision making of any kind is not an exact science.
However, in pivotal cases such as in this case involving Cord’s challenge of the presidential tally where the national interest is significantly implicated, the Court must not only reach the right decision, but you must find within yourself a way of reaching a consensus as to what the right decision must be relative to those interests.
Indeed, a unanimous decision one way or the other will be the best outcome that will have few second guessing or having any doubts as to the objectivity and sound application of the law to the facts and evidence presented before the Court.
The United States which prides itself as having the best judicial system in the world has for a long time and increasingly so become a divided nation not only politically, but even in her Supreme Court where a number of key cases have been decided on 5-4 decisions reflecting the ideological bent of the Court’s moment.
The ideological divisions both in politics and law are so fueling each other the country that also prides itself as the greatest democracy is virtually becoming ungovernable as both sides dig in to prevent the other from making any gains—leaving everyone including the entire country suffering the consequences of the stalemate.
We do not have clearly defined ideological divisions in our country, but we have something worse and that’s division along tribal and ethnic lines.
One would have to assume and believe neither of these two crippling vices have found or can find their way to our relatively newly minted Supreme Court and lower courts undergoing reforms.
In other words, we cannot cripple ourselves to stagnation in development and progress on account of tribalism based division akin to the ideological based division in the United States that is nearly bringing the world’s remaining super-power into its knees; they can afford that as they have been developed for a long time, we cannot because we have never even started to be developed.
We have already seen the effect and impact of tribalism and negative ethnicity in our country and how that has been a roadblock to accomplishing most if not all of our aspirations as a country.
How deep this phenomena is entrenched in our people’s psyche can actually be readily seen in how the elections were conducted and even in the outcome that is now the subject of the litigation underway to determine exactly what happened.
Many had hoped with passage of the new constitution and in particular the threshold required for one to be sworn as president would have resulted in less tribally based electioneering and results.
That’s obviously not been the case, which leaves the only hope to fix this being none other than your esteemed institution.
As Chie Justice and Head of the judicial branch, you have, in fact, already demonstrated your commitment to judicial excellence guided only by traditional rule of law principles, which bodes well for any decision of this magnitude as you’re about to be called upon to make as our Supreme Court.
We have the faith and confidence Your Honors shall rise to the occasion and render as good and apt decision as one can be rendered considering only the evidence and the national interest.
This is not to say judicial decision making is or must be totally divorced from that which is innate in human nature but what has to be the case and matters most is that in so deciding along with the frailties of human nature, those like you who have been elevated to this significant positions of governance and are entrusted with the responsibility to make the right calls to the best of your ability have distinguishable qualities such that your ability to make sound decisions based on facts and law is far more easily attainable than an ordinary person who may find that almost impossible, especially in separating emotion and preconceived notions of what is or should be just as informed from a very narrow, tribal or ethnic prism.
It’s that distinction and your commitment to judicial excellence that gives us all who care deeply about our beloved country hope that whatever decision you reach in connection with the petition challenging the presidential tally following the March 4th election will be for the good of the country and must be accepted by those who have her interests at heart.
Third, no amount of jurisprudential excellence is ever guaranteed freedom from criticism or condemnation.
As noted above, it’s preferable that the Court reaches a unanimous decision whichever way the consensus of the court goes as to the merits of the petition challenging the presidential results announced by IEBC.
Such an outcome may not guarantee or shield the Court from criticism or condemnation from those who may not agree with it, but it would certainly go a long way in reducing the number of those so inclined to so condemn or criticize to a negligible minimum more akin to the village madman or woman every village must have—and that will be great for the country, given the concomitant reduction in divisiveness flowing from it.
In the event there are those in the panel that would render this monumental decision that would find themselves in the minority as to the final decision, it would behoove them to search their souls and see if they cannot bring themselves to see where the majority is coming from and join them for the sake of unity for our beloved country.
Were that not to be the case, namely, were it to be the case the Court renders a split decision granting or denying the petitioner’s prayers, then one would have to hope and pray for the sake of the country the majority’s position is and shall be deemed to be consistent with the will of the people as expressed in their voting on March 4, 2013.
In the end, that’s really all justice demands under these circumstances and we are all confident the Court has sufficient wisdom, experience, knowledge and expertise to render just that kind of a decision devoid of any other considerations.
We are praying for you and our beloved country.
Samuel N. Omwenga, Esq.