Will ideology, tribe, or judicial activism influence Supreme Court ruling?

I met a friend who was a victim of 200/8 post-election violence celebrating the peace accompanying March 4 2013 elections and expressing full confidence in the Supreme Court ability to deliver impartial judgment. He referred to Dr. Willy Mutunga as a champion of justice and democracy. My elated friend made such comments following  Jubilee presidential aspirant, Deputy Prime Minister, Uhuru Kenyatta being declared the winner of 4 March,2013 elections garnering more than 50 per cent plus one vote, Cord and AFRICOG filed petition in Supreme Court challenging IEBC’s decision and seeking to have presidential results  nullified.

 

 THE HON. JUSTICE (DR.) WILLY MUNYWOKI MUTUNGA, D. Jur., SC, EGH – CHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT OF KENYA

The move was encouraged by the recent judicial reforms which are well underway as Justice Rao Commission was and is still vetting judges and magistrates. Observably, Kenyans are having more faith in the reformed judiciary and expect fair rulings regarding all petitions challenging the just concluded elections.

 However, there are concerns on the part of respondents who, through their proxies insinuate, that the Supreme Court may engage in what is termed as judicial activism and set precedence as the first court in Africa to have nullified presidential elections. Judicial activism describes rulings suspected of being based on personal or political considerations rather than on existing law.

A Glossary of Political Economy Terms describes judicial activism as “the view that the Supreme Court justices (and even other lower-ranking judges as well) can and should creatively (re)interpret the texts of the Constitution and the laws in order to serve the judges' own considered estimates of the vital needs of contemporary society when the elected "political" branches of the government and/or the various state governments seem to them to be failing to meet these needs. On such a view, judges should not hesitate to go beyond their traditional role as interpreters of the Constitution and laws given to them by others in order to assume a role as independent policy makers or independent "trustees" on behalf of society.”

These fears are founded on grounds that in the recent past, while exercising principle of separation of powers, high court nullified various decisions made by the executive, particularly the president. Most memorable being nullification by the high court of Matemu Mumo’s appointment as director of the Ethics and Anti-Corruption Commission (EACC).

Worth noting, and of course very trivial, during the preliminary hearings in the Supreme Court on Monday and Tuesday, online blogger quipped that the lead counsels for all petitioners and respondents shared tribes with their clients. Whether it is mere coincidence or a sheer mistrust of counsels from other tribes, many online bloggers wondered whether ethnicity has influence on professional performance. However, it should be considered that may be these particular respondents and petitioners could have known each other way before March, 2013; in school, village, government, and even overseas. The same goes for Supreme Court judges and petitioners.

One blogger, Mzee Jalang’o observed rather sardonically, “Lawyers representing their clients in the Supreme Court: George Oraro for Raila; Kitwa Kagen for Ruto; Fred Ngatia for Uhuru; Ahmednasir for Isaack Hassan; Njoroge Regeru for activist Moses Kuria. Have a tribal free day, won't you?”

From a cursory look, one discerns that both counsel  Oraro and PM Raila are from Luo community; Counsel Katwa Kigen and Deputy President –elect  Ruto are of Kalenjin origin; Counsel Ngatia and President –elect Uhuru are of Kikuyu community; Counsel Ahmednasir and the IEBC Chair Isaack Hassan are Somalis; Counsel Njoroge Regreu and activist Moses Kuria are kikuyus. Well, observation feeds into the notion of ethnicity but does not necessarily hold water.

Worse still, ‘political pundits’, in social media, analyzing how the six supreme court judges would vote to determine the petition,  predict voting in a tribal manner, that is, Justice Njoki, Tonui and Mohamed to vote against the petition while the rest to uphold the petition. “Only 30^th March will absolve us or confirm our fears”, one social media blogger said in resignation. 

Supreme Court judges during election petition proceedings

One question people ask is: will ideological and occupational background influence Supreme Court judges’ rulings? It is common knowledge that Chief Justice Willie Mutunga has a background of struggle for the second liberation and was incarcerated with Hon. Odinga (among others) who is the first petitioner. On another note, Willie Mutunga worked in the civil society until his appointment to the judiciary. He is a neoliberal with a long history of liberation struggle, which may concern people who are perceived to be agents of status quo.

On the other hand, Justice Njoki Ndung’u has been in the civil society with stint in the ninth parliament under PNU and earned much fame from her Sexual Offenses Bill. She was at one point opposed to certain issues in the constitution review process and largely perceived to be a feminist and kibaki apologist. For that matter some pro-reform individuals posit that her vote is most likely to favour status quo.

Justice Njoki Ndung'u

Justice Ojwang’ is not spared either. He has lived his professional life teaching law at the University of Nairobi and is largely seen as conservative academician whose ruling may be academic and legally conservative.  His vote may be called a ‘swing vote’ since it parts with both the liberals and the status quo.

Like all the three judges mentioned above, Justice Wanjala had never served in the bench prior to his appointment to Supreme Court but has worked with KACC, now renamed EACC. His vote may go with the liberals since he is perceived to be slightly liberal. 

The remaining two judges, Justices Tonui and Mohamed have served in the bench before and may vote either way but less likely to favour judicial activism.

To sum it up, and thanks to live coverage, Kenyans and the whole world will know why each judge voted for or against the petition. 

Shem Sam