My Dissenting Opinion

Legal judgements do not always make for absorbing reading. I suppose this is because judges want to sound measured and impartial, disinterested if not particularly interesting to those whose study of the law consists of a few seasons of Boston Legal.

And so it was when the Supreme Court released its judgement, finally offering up a justification for its decision to uphold the election of Uhuru Kenyatta as President of the Republic of Kenya. Still, as I dutifully and valiantly trudged through it 113 pages, I found myself getting all emotional about this lack of emotion.

Now I'm a great Boston Legal fan so I will not pretend to understand the intricacies of law or the ways of lawyers. My ignorance was not helped by the reluctance of the media to unpackage the judgement and explain the old precedents it has overturned or new ones it has established (BTW, why is that?). In any case, how a ballot transmogrifies into a vote holds little fascination for me. What did, however, was to see the problems of the election reduced to such bland, tasteless and uninspiring arguments.

“Is that it? Where is the outrage?” I kept asking myself. Surely, the frozen IEBC screens that kept a nation in purgatory for a week deserve more than a “We came to the conclusion that, by no means can the conduct of this election be said to have been perfect, even though, quite clearly, the election had been of the greatest interest to the Kenyan people, and they had voluntarily come out into the polling stations, for the purpose of electing the occupant of the Presidential office.”

I am sure the distinctions of who bore the shifting burdens of proof as well as just how convinced the Court needed to be (beyond reasonable doubt or on the balance of probability or somewhere in between) have their place in the sanitized arena of the courtroom where everyone is friendly and learned. But out here, where elections are more about raw emotions than rational choices, such abstract considerations are a luxury we cannot afford.

Whether “the Petitioner clearly and decisively show[ed] the conduct of the election to have been so devoid of merits, and so distorted, as not to reflect the expression of the people’s electoral intent (italics theirs)” is of less import as a test here. In the end, the fact of who won pales in significance in comparison to the manner in which that win was secured.

By now, the substance of the legal battles enacted live on TV will have ebbed from most minds but few will ever forget those IEBC screens. In the real world, it is those screens that militate against legal assumptions such as omnia praesumuntur rite et solemniter esse acta: all acts (of public bodies accused of irregularities) are presumed to have been done rightly and regularly. We dare not presume a thing like that. How can we when it is public bodies that have given away our land, detained, tortured, disappeared and murdered those they were meant to serve, and turned a blind eye when thieves loot the treasury and granary?

In truth, while the Supreme Court has quite correctly pronounced itself on the validity and legality of the IEBC register(s), methods and declarations, the ultimate judges of the credibility of the exercise are the people of Kenya. If a number of them feel that their votes did not count, feel disenfranchised by the system, then to that extent the processes failed.

The Court’s opinion is undoubtedly the one that matters in deciding whether the election achieved the standards set forth in our law. And I wouldn't have it any other way. But there are other opinions and other courts. The opinion of the public court, imperfect and prone to mood swings and vulnerable to deceptions, matters most in sustaining and developing a democracy. It is the opinions of the millions who live and breathe outside its hallowed halls that should always have been the focus of our attention. So, when one hears stories of people wanting to burn IDs or saying they'll never vote again, it is clear that there are real credibility issues that need resolving. The question must now be: How do we restore the faith of half the country in a system that they believe, rightly or wrongly, has betrayed them once too often? How do we provide relief to the other half who feel the need to constantly and sometimes hysterically defend the electoral result?

I think a good place to start would be a comprehensive, honest and impartial audit of the entire electoral process, everything from the registration of voters to the tallying and transmission of results. Something more than the corruption investigation that the Supreme Court has recommended.

Lets's fix this before we "move on." It must not be swept this under the national carpet. And while we’re at it, an airing of our collective closet -the TJRC report is due in just over two weeks time- would help immensely in tempering the emotion associated with elections and creating space for more rational deliberation, perhaps too not unlike what happens in the courtroom. After all, we could use a break from the interesting times.