We'll annul poll again if law is breached — CJ David Maraga

Chief Justice David Maraga remains defiant in the face of criticism the Supreme Court has attracted since it annulled the outcome of the August 8 presidential election.

Justice Maraga on Wednesday said the court’s consistency and fidelity to the Constitution is a unwavering commitment, and that it will not hesitate to annul presidential election if called upon to adjudicate on a similar dispute where the anomalies remain the same, irrespective of who the aspirants may be.

THE LAW

“For as long as the Constitution has the provisions granting this court the mandate to overturn a presidential election in appropriate circumstances, it will do so because the people of Kenya in the preamble to the Constitution adopted, enacted and gave unto themselves the Constitution for themselves and future generations,” he said.

In its four-against-two majority judgment, the Supreme Court overturned the outcome of the presidential election, effectively annulling President Kenyatta’s win and ordered a fresh poll within 60 days.

However, the decision was not taken lightly by President Kenyatta and members of his Jubilee Party who have questioned the legality of the four judges overturning the will of voters.

Mr Kenyatta dismissed the judges as “crooks” and promised to review the judgment if re-elected.

"I think those robes they wear make them think that they are clever than the rest of us," President Kenyatta said, taking specific aim at Justice Maraga.

UHURU

"Maraga thinks he can overturn the will of the people. We shall show you ... that the will of the people cannot be overturned by a few people."

But reading the majority judgement, Justice Maraga said the under Article 1 (3) (c) of the Constitution, Supreme Court is one of those to whom sovereign power has been delegated.

“All of this court’s powers, including that of invalidating a presidential election is not self-given nor forcefully taken, but is donated by the people of Kenya,” he said.

He noted that it would be a violation of constitutional principles if the court dishonestly exercised that delegated power, noting that it would be a dereliction of duty if the court refused to accept the invitation to do so however popular the invitation may seem.

He said the court took the bold decision because, as judges they have taken an oath, as advocates first and as judges later.

ELECTIONS ACT

In the two oaths, he noted, the fundamental words are fidelity to the Constitution without fear or favour, insisting that the constitutional principles the court upheld in the judgment were embedded and became a critical part of Kenya’s electoral law.

“The legislature in its wisdom chose the words in Section 83 of the Elections Act and in keeping to our oath, we cannot, to placate any side of the political divide, alter, amend, read into or in any way affect the meaning to be attributed to that dsection,” he said.

“However burdensome, let the majesty of the Constitution reverberate across the lengths and breadths of our motherland; let it bubble from our rivers and oceans; let it boomerang from our hills and mountains; let it serenade our households from the trees; let it sprout from our institutions of learning; let it toll from our sanctums of prayer; and to those, who bear the responsibility of leadership, let it be a constant irritant.”

The four judges rejected claims that by annulling President Kenyatta’s re-election, the court had lowered the threshold for proof in presidential elections.

TECHNOLOGY

“We do not think so,” the court answered its own question.

“No election is perfect and technology is not perfect either. However, where there is a context in which the two Houses of Parliament jointly prepare a technological roadmap for conduct of elections and insert a clear and simple technological process with the sole aim of ensuring a verifiable transmission and declaration of results system, how can this court close its eyes to an obvious near-total negation of that transparent system?”

The court noted that elections world over are competitive features.

Presidents in many parts of the world, and especially in Africa, wield a lot of power.

The influence that comes with the office makes it very attractive so much so that the influence cascades down through all elective positions.

INSTABILITY

Candidates and political parties often do anything to be elected.

Besides the candidates, the electorate themselves, hoping for an improved standard of living, get equally agitated and the judges noted that all these factors make elections at every level extremely high-pressure events.

“If they are mismanaged or candidates do not respect the rule of law, if the average citizen, political parties and even candidates themselves do not perceive them as free and fair, elections can, and have led to instability in some countries,” CJ Maraga said, giving the example of 2007/08 post-election violence in Kenya.

“The flawed presidential elections in Kenya in December 2007 led to post-election skirmishes that left over 1,000 people dead, about 50,000 others displaced and drove the country to the brink of precipice not to mention the economic crisis that was thereby wrought.”