Chief Justice Willy Mutunga has said he
has no regrets over the Supreme Court’s decision that reaffirmed
President Uhuru Kenyatta’s win in the March 4 General Election.
Dr
Mutunga also proposed that there should be an alternative political
mechanism to resolve election disputes instead of relying on courts.
The
CJ said courts could not satisfy everybody in an election dispute in a
country which is divided based on ethnicity, tribe, clan, race,
religion, class and culture.
Dr Mutunga was speaking
during a debriefing of advocates and the launch of the Handbook on
Election Disputes in Kenya at a Nairobi hotel. He also said the election
disputes were denting the image of the Judiciary which the country has
been trying to build since 2007.
"How do you expect the
court to decide a dispute and losers say they are satisfied? How do you
expect court to convince the loser that there was justice?" Dr Mutunga
said.
He said there should be a political tribunal to
address differences during elections and a decision reached through a
culture of elite consensus to save the Judiciary from damage.
Dr
Mutunga’s remarks came after Law Society of Kenya Chairman Eric Mutua
said lawyers were unhappy with the way the Supreme Court, of which Dr
Mutunga is President, handled the presidential election petition.
“The
bar feels it should have been handled in a different manner,” Mr Mutua
said, but also conceded that the Judiciary had done a commendable job in
handling other electoral disputes.
The LSK boss said
the speed in which the electoral petitions were concluded should be
replicated in other civil matters to fasten delivery of justice.
Dr
Mutunga said conducting a peaceful election, and peacefully resolving
the disputes that arise from them, are important markers of a maturing
democracy.
“This is playing politics under the four
corners of the rule of law, and we must not take it for granted. All
institutions and actors in Kenya’s 2013 electoral processes must fortify
the positives of this experience, learn from and eliminate the lapses
that may have occurred, and in consequence enrich our constitutional
democracy,” Dr Mutunga said.
The electoral dispute
resolution processes in the trial courts ended in October. The appellate
process began in earnest thereafter and now the focus has shifted to
the appellate courts.
“We at the Judiciary are pleased
with the management of the electoral dispute resolution process. The
handling of the disputes within the timelines set is a constitutional
victory for the Judiciary and our country at large,” Dr Mutunga said.
IEBC CHALLENGES
The
Independent Elections and Boundaries Commission chairman Issack Hassan
said there’s no election without an element of dispute.
He however said the disputes over the March 4 election was not a reflection of IEBC’s weakness.
Mr
Hassan said the high number of election related disputes after the
March polls was as a result of increased public understanding of the
available redress.
The IEBC has been under criticism
from a section of Kenyans led by the Coalition for Reforms and Democracy
(Cord) leader Raila Odinga over the handling of the March 4 elections
that was marred with breakdown of equipment and other irregularities.
The
Supreme Court has also been under attack for re-affirming the IEBC’s
declaration of President Kenyatta as the winner of the March 4
presidential polls with a slight margin against his main rival, Mr
Odinga.
Mr Hassan said the biggest challenge IEBC had
was dealing with the timelines following the 10th Parliament's
amendments that put party primaries too close to the General Election.
He also criticized late court appeals decisions and injunctions saying they led to loss of taxpayers money.
In
March, Mr Hassan declared Mr Kenyatta the winner of the presidential
election with 6,173,433 votes against Mr Odinga’s 5,340,546 but the Cord
leader challenged the decision in court saying IEBC had rigged the
polls in favour of the Jubilee leader.
Mr Kenyatta
surpassed the constitutional requirement of 50% + 1 vote by 4,100 votes
which saw him get 50.07 per cent of the votes.
The
Supreme Court headed by Dr Mutunga ruled on March 30 that President
Kenyatta was “validly elected in a free, fair, transparent and credible
election.”
The constitution stipulated that the dispute
was to be resolved within 14 days and Dr Mutunga’s team had only five
days to review the petition and make a ruling.
The
actual one-page ruling was written and signed by the six Supreme Court
judges at the time and took less than 10 minutes to be read to Kenyans.
The
Supreme Court rejected Mr Odinga’s 900 page petition on grounds that it
was time barred. The first issue that was determined was whether then
President-elect Uhuru Kenyatta and Deputy President-elect William Ruto
were validly elected.
The Handbook on Elections
Disputes is intended to contribute to the debate on elections, secure
credible and fair dispute resolution mechanisms for future elections,
equip both the Bench and the Bar with a broad understanding of the
constitutional and legal framework that governs elections in Kenya,
particularly electoral disputes and aid in electoral dispute resolution
by providing an analysis of the existing jurisprudence.
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