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.