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OPINION: PRESIDENTIAL PETITION 2017, WHO IS ON TRIAL, COURT OR DISPUTED ELECTION?

CJ DAVID MARAGA

Raila’s challenge to President Uhuru’s re-election proceeds on a polarized environment. Both have attacked the Judiciary’s handling of electoral disputes preceding the general election.

Raila would not accept a verdict on appeal, reversing the High Court’s decision on finality of results declared at the Constituency. He has given the Supreme Court “a second chance to redeem itself”.

Raila has commenced a campaign for truth and electoral justice. Mudavadi has demanded each Judge writes an individual decision to be read in determination. “No more repeat of Mutunga’s 5 minutes decision”, he said.

Do not mistake our meekness for weakness. We will not allow them (NASA) to use Courts to win this election through the back door”, said Uhuru. Kipchumba Murkomen dared CJ Maraga to vie for president. Raila has been urged to concede defeat, in tandem with losers in his coalition.

In a rejoinder, Maraga reprimanded politicians. He affirmed judicial independence. That is doubtful, noting that Judges recused themselves following pronouncements by the two camps.

The Court is on trial, as is the dispute before it. Fair comment and criticism is permissible. Threats and intimidation do not amount to contempt, if not made during a sitting or attendance in Court. Even if not fair, they should not be pursued. It is cautious not to excite a charged arena.

In 2013, justice was sacrificed on technicalities. An unreasonably high standard and burden of proof hitherto unknown in the Commonwealth was set. Reliance upon decisions from Nigeria, Gabon and Uganda; countries without serious legal ferment, was a monumental error. There abound many local cases for application.

The complexity of a presidential petition is volume of evidence and time constraints. An in-depth trial is impossible. Focus is on principles of “a free and fair election”. Proven compromise of the process, however minimal, suffices to invalidate the election. The petition must be dismissed, if it seeks a length, tiresome numerical audit of numbers only. Fidelity of electoral process, not volume of evidence or margin of win is the guide.

The vetting board sacked Judges who, in the past, determined petitions on technicalities. Another did not escape responsibility for “state gate keeping”, on the plea of collective decision. Judicial authority is derived from and vests in the people. It must be exercised for the peoples’ benefit; lest the people try the Judges.

Conflicted Judges must disclose interests freely. Jurisprudential quotient of Judges must come through individual decisions. Commonwealth Judges rule separately, even in agreement. The Court of Appeal did so, until recently when the practice was abandoned without explanation. Expectations will be met, only if glaring evidence is examined and law and public policy applied on the need for a “free and fair election”.

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