Within hours of the start of the Supreme Court hearings legal jargon like Amicus curiae (friend of the court) and others entered the Kenyan lexicon. But just as fast after the initial ruling, the interest quickly dissipated and the disaffected Kisumu Cord supporters’ lamentations and use of the Luo word donge (isn’t it?) quickly kicked the Latin legalese to the backburner.
The question is, should the full judgment have elicited more media coverage? Were there issues that could have been teased out that were not captured in the initial summarized judgment?
Veteran journalist David Ohito says many stories can be unpacked from the Supreme Court ruling on the presidential election petition but most journalists shied away from delegitimizing a process that has calmed the general body politic. Kenyans, journalists included, have never found themselves called upon like now, to be part of a peace collective.
To start with Ohito wonders why the full ruling was not read out in open court, a position also held by constitutional lawyer and former Committee of Experts on Constitution Review director Ekuru Aukot. Ekuru says that given the Supreme Court was ruling on a presidential petition for the first time, the case could have only been done justice if it was accorded all the attention and time it deserved. After all, Ekuru argues, this is the court of first and last resort. During a 10-minute session to announce the ruling, Chief Justice Willy Mutunga said the six-member court had reached the unanimous decision that upheld the election of Uhuru Kenyatta for president and his running mate William Ruto for deputy president. The full ruling was released a week later for distribution.
Many Kenyans find it odd that a court composed of such revered legal minds could find unanimity. Once the verdict was written and signed by all as unanimous there was little that could be done, but some journalists feel that the whole process of deliberation and voting should have been publicized. Isn’t there a danger, they ask, that in the future people would shy away from the Supreme Court if they feel that it is a court of similar mindedness? Where is the proverbial organic jurisprudence?
Lawyer Fred Athuok says that whereas the Supreme Court took a significant step in accepting to hear the petition, similarities can still be drawn between this case and the Moi versus Matiba case of 1993. The Matiba case was dismissed on a technicality that the petitioner had not signed the petition personally due to medical incapacity. Athuok draws similarities in the manner in which the Supreme Court rejected some of Cord’s evidence as time barred. Both Athuok and Dr. Ekuru quoted article 159 of the Kenyan Constitution that says “…justice be delivered expeditiously and without undue regard to technicalities.”