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Tuesday, April 16, 2013

Supreme Court Judgment on The Presidential Petition Analysis

After reading Mystery Monday a book that gives inside information about what really happened in the just concluded presidential elections a reader commented thus last Saturday (which was the day the judgement of the Supreme court was expected);

"...Many pieces now fit perfectly in place after the gaps have been joined together. Oh my! Oh my!

...Now I know the kind of response we will get from the Supreme Court judges today."

Those words have proved very prophetic indeed as a few hours ago the Supreme court finally released its' detailed judgement that upheld the election of President Uhuru Kenyatta.

Interestingly lawyers and other interested parties had  come to court bracing themselves for a long stay as the judgement was read through. It never happened. Instead it was all over in a few minutes as Chief Justice Willy Mutunga released a 300 page booklet of the judgement for everybody to read in their own time. You can read it NOW in full HERE.

The reason why judgements and verdicts are so long is because law courts are all about evidence and proof and just as parties present evidence to prove their cases, judges too have to present "evidence" to support their ruling. This is one reason why summarizing entire judgements is such a tricky and dangerous thing to do. More so in such a sensitive case that had such a far-reaching impact on everybody who lives within the shores of the country called Kenya and well beyond.

Still I will attempt to do it in one paragraph.

In acknowledging that the just concluded presidential elections were "NOT perfect" the Supreme court judges still unanimously ruled to retain the status quo because there wasn't sufficient evidence to prove that the said imperfections impacted on the final results. The office of the president of Kenya is a very high office and nullifying the results of such an office requires solid conclusive evidence that the results would have been different. That is really the crux of the judgement.

It is at times like this that everybody suddenly becomes a seasoned lawyer in passing their own quick judgement about the fairness of the verdict. More so in the Kenyan situation where there have been plenty of bad experiences from the past where courts previously controlled by the executive have passed questionable verdicts clearly favouring those in power. This is what over the years eroded the confidence of Kenyans in their justice system.

To make matters worse the just concluded elections split the country right down the middle with CORD supporters feeling that the election was stolen from them. JUBILEE supporters on the other hand were convinced even before the elections that they had the numbers to win this contest, never mind what the "highly scientific opinion polls" were saying different. Many of them pointed to the fact that JUBILEE has a clear majority in both houses as further evidence that their man won the elections.

In defense of this some CORD supporters said that while JUBILEE "MAY have won" the first round of the presidential contest they did not attain the constitutional requirement of 50 per cent of the total votes cast plus one.

This kind of scenario put the newly constituted Supreme court of Kenya in an impossible situation where whatever ruling they were going to make a huge chunk of the voters would have felt justice was not done. Some Kenyans advised the judges through the press and social media to pass a Solomonic verdict (remember the famous wise King in the Bible?) But this is a court of law, how do you ignore the evidence and pluck out a Solomonic verdict from the air?

This blogger has for the last few weeks continued to face the wrath of many previously faithful readers who analyzed every sentence down to the last word and punctuations to quickly pass judgement on which side I was favouring. With emotions so high an analysis of the just concluded elections has been impossible. How do you do such an reason in an environment so charged with emotion and expect readers to take in the cold facts? The judges faced a situation that was not too dissimilar.

Going by the laws of the land the judgement of the Supreme court is final but in the next few days and weeks it will not escape the same fate I have had to live with of most Kenyans analyzing it purely based on what side of the political divide they fall. And that does not spare highly trained and qualified persons in law. Sadly even the few who are impartial on this matter will not be able to attract any attention on valid points they make from most of the country who will read their views with their minds already made up and will label them accordingly.

CORD leader Raila Odinga said at the beginning of the process that his main interest was for Kenyans to know what really happened on that all important March 4th 2013 day. This judgement hardly gives the answers that so many neutral Kenyans and a few supporters on both sides with an open mind have been seeking. And so that Monday will remain a mystery for seekers of truth (who have not read Mystery Monday) at least for now.

However for those still interested in the facts, the Supreme court has done its' job. Law courts work with evidence and not emotions. And the truth (go ahead and call me a JUBILEE supporter) is that even if there was a higher court it would have been difficult to challenge this ruling without introducing new solid evidence. Any level-headed layman can agree that there wasn't enough evidence presented to the court to overturn the election of President Uhuru Kenyatta.

Still it is also true that analyzing carefully the events leading up to the elections and after as I have done in my latest book; Mystery Monday; Unlocking the 2013 Kenyan Presidential Polls Secrets will leave you with no doubt that something wasn't quite right. Even more fascinating is how the distinguished CORD lawyers were outsmarted so that what started out as "a water tight case that will bring an end to the rigging of presidential polls in Kenya" (the words of lawyer and now senator Mutula Kilonzo) ended up being a case that was struggling, scrambling and scrounging for half-baked evidence to prove their case. Where did the evidence disappear to? Did it end up as one commentator on social media dramatically put it; "at the bottom of the Indian Ocean'? Or was it just missed? Actually it was missed and the lawyers looked in the wrong places for it. It is something totally unexpected and I dare say it is all in my book.

But for now what needs to be done very urgently by both houses is to bring bills to the house that will shut the loopholes that were exploited once and for all. The bitter truth for our dear CORD supporters to swallow at this time is that it would be counterproductive to get stuck like an old record on the elections that are now over. It will help absolutely nobody least of all that political coalition. Brethren that is the nature of this life there are times to retreat and take up the fight with a different strategy and on a different level with your eyes firmly fixed on the future because that is where you are going to live the rest of your life.

To JUBILEE supporters it is wise to remember that as sweet as victory is, the truth concealed is like a seed buried in the ground. It disappears and dies inside the soil. BUT one day it MUST grow. This may have to wait a very long time until the next rains or even many rains in the future. But one day it will surely come shooting out of the ground to shame even peddlers of half truths. I write this words consoled by the fact that the written word lives a long time so that even if it is derided, dismissed and ignored now, if it holds any water one day (even if it is centuries from now) somebody will dig it out and honour its' value.


Taabu said...


1) Please MOVE ON, won't you. Remember PEACE COMA?

2) Fact: the fact that JUBILEE has a clear majority in both houses is proof it won. Compare and contract ODM/PNU in 2007. Facts mutate, ama?

3) Which CULT do you belong to and why are you preaching to a sonorous choir? Hakuna mbegu/seed!!

Anonymous said...

Moving on is a primitive way of handling matters in Africa. The African always wants to forget as quickly as possible.

What SC has done is a shoddy job which even a layman can sense. Elections were not credible. That is what they have written.

Either these 6 people were terribly threatened with death (same as Kivitu- it is not a coincidence that he died on tallying week) or
the six were paid dearly.

We have accepted the ruling, but it doesnt mean that we shall forget the injustice.

These vote thieves will do it again in 2018 (just as they got away with it in 2007). Thank you Bwana Kitunga. Our trust has evaporated.

Anonymous said...

If moving on is so-called "a primitive way of handling things in [Africa]" then hanging tooth and nail onto the past without letting go is primal stubbornness at its worst.

Moving on is not about winning or losing a presidential election, but it is all about the ordinary people freeing themselves by shedding off tons of unwanted political baggage in their lives.

FYI, [Africa] is a continent. The world's second-largest and second-most-populous continent. At about 30.2 million km including adjacent islands, it covers six percent of the Earth's total surface area and 20.4 percent of the total land area. - NGS.

So, where in [Africa]?

Anonymous said...

An experienced lawyer like Mutula Kilonzo should have known better, that an airtight case always holds more legal weight than a watertight case when presented before any court of law.

The Mutula "evidence" was just an indicator of what he and others on the legal dream team thought might lead to what may have caused the "unexpected outcome" at the polls on March 4th.

But, as it turned out, the indicator as later presented was not any real evidence connected to the purported "gross irregularities" at the polls on March 4th.

There were notable legal flaws and loopholes in the whole election appeal that was filed by Mutula Kilonzo and company on behalf of their client.

Anonymous said...

There was bound to one winner rather than two winners as was the case with the defunct dysfunctional coalition government. A fact that seems to have remained oblivious to some people, even after they had flocked to the polls. While the "African" accepted the ruling due to the fact that s/he has learned very terrible bloody lessons from the 2007 general elections.

Anonymous said...


The Solomonic verdict or ruling is not feasibable in a place such as the republic of Kenya, given that the fact that the Solomonic verdict of 2008 ended up becoming a Solomonic column that lasted fora whole five years without ever doing any good as expected and throughout the entire country. They practicle or workable in the Solomon Islands that consist of 'a collection of nearly one thousand unhurried and unspoiled islands in Oceania that form a sovereign country.' So, why would anyone in their right mind accept or allow their own child - the adminstration of a nation - to be divided into two halves that equalled one?

Anonymous said...

@9:53 AM

It is okay to express bitter disappointments that are still being felt by many who have yet to absorb the massive blow that were dealt them at the polls on March 4th and later through the final peition judgement issued by the Supreme Court.

What is the worst case scenario that could happen?

The worst case scenario is to remain upset and get caught with issues, or people that cannot change to please you, but will only continue living their lives to the fullest.

It is not worth it at all, but to move on in self-preservation, otherwise self-destruction is bound to come knocking in way or another in the course of the next five or ten years.

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