Why the low-key conclusion of a very high profile election dispute?

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.

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.

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