By GEORGE KEGORO
Posted Friday, April 19 2013 at 18:37
The decision of the Supreme Court to release the judgment in the election petitions, rather than read it to the public, appears strange in the overall scheme of things.
Posted Friday, April 19 2013 at 18:37
The decision of the Supreme Court to release the judgment in the election petitions, rather than read it to the public, appears strange in the overall scheme of things.
The court had positioned the hearing of the
presidential election petitions as a showcase of best judicial
practices, meant to demonstrate transparency and independence to the
country. This was especially so because of the high political stakes
that the petitions presented.
The Supreme Court would have hoped that these
practices would calm the country, and sustain public confidence in its
processes as well as provide an example to the lower courts.
Further, the presence of high profile foreign
judges at the hearing meant that the Supreme Court was also showcasing
itself in the region, where Chief Justice Willy Mutunga is well
respected.
As part of this, the court deliberately, and
unusually, organised a very public hearing of the petitions, complete
with live media coverage.
The decision to release the judgment, rather than
read it in court, brought the high profile proceedings to an uncertain
and low profile end.
There are those, especially ordinary members of
the public, whose only means of following the proceedings was the live
media coverage. They would have been awaiting the reasoned judgment
which the court promised, and which should have been given similar
coverage as the hearing.
The Supreme Court was always aware that whatever
decision it gave would alienate a large part of the population, even as
it pleased many others. Of course, justice is often controversial and
the fact that the judgment of a court of law is unpopular does not
necessarily mean that it is wrong.
And I am not even suggesting that this decision
was unpopular. It is for that reason that the court should have taken
the greatest care to ensure that it communicated effectively and that
its decision was clearly understood, even by those that would not agree
with it.
Having started out on the
high-profile-best-practices mould in hearing the petitions, it was only
fair that the court maintained that to end. This would have required the
convening a high profile session at which the court would read its
final judgment.
In case the court found it hard to read all the
113 pages, it would have been sufficient to highlight aspects of the
judgment for the benefit of the public.
The unintended consequence of the decision to
release the judgment in the manner that the court chose, is that it
allows the assumption that the judges, or some of them, are unhappy with
it, or are embarrassed to stand by it in public.
For the parties that bravely went to court,
risking public ridicule and high legal costs, a public reading of the
judgment would have been therapeutic and would have brought closure to
the proceedings in a manner that allowed them one last stand for what
they so strongly believed in as to go to court.
For the court, a reading of the judgment would
have acted out the fact that the court takes seriously the
accountability that is expected of it. To the lower courts, that have
been following the proceedings, the message of judicial accountability
would have been sent powerfully.
So where do we stand after the judgment of the Supreme Court?
Sections of the population, including those that
supported President Uhuru Kenyatta, and believed that the elections were
free and fair, have indicated that the Supreme Court left vast room for
improvement in the manner that it canvassed its decision in the
petitions.
Although the opportunities the petitions provided are now closed, it is not the end of the work of the court. As the days unfold, in a country that remains polarised, there will be more and more attempts to use the courts, and not just the Supreme Court, to resolve volatile political issues.
Although the opportunities the petitions provided are now closed, it is not the end of the work of the court. As the days unfold, in a country that remains polarised, there will be more and more attempts to use the courts, and not just the Supreme Court, to resolve volatile political issues.
In my view, despite the existing disagreements and
even dismay over the judgment, public confidence in the Supreme Court
remains intact. And the use of the courts as arbiters of political
disputes will continue in the coming days.
gkegoro@icj-kenya.org
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