It’s agreed by all that the worst Supreme Court decision in United States history is the Dred Scott case of 1857 in which that court essentially held that black Americans were not humans but property to be used and discarded by whites as they pleased.
It’s been more than 156 years since that atrocious decision was rendered. The case is, however, still cited, to this day, in both judicial and non-judicial circles as an example and reminder of how institutions that are supposed to be as noble, jurisprudential, fair and impartial as a country’s highest court can and do render decisions that leave people flabbergasted as to the crudeness of the decision.
Our Supreme Court has been around for only two years having been created following the constitutional reforms of 2010. It was created to supersede the Court of Appeal from which no one expected neither justice nor application of law to resolve anything.
Those reading this column now will long be gone from the face of the earth 156 years from now. But rest assured our Supreme Court’s decision in the Raila and AfriCog petitions will even then be unrivaled as the worst the court could ever render. Those who rendered it would have to condemn themselves were they to be intellectually honest.
There are many reasons why one would justifiably reach this conclusion. Covering them all would require time and space not available now. It is, nonetheless, crucial to say the following:
To begin with, it has been documented and established in columns published in this paper and elsewhere that the reasoning the court gave for dismissing the petitions are intellectually shallow. They are an embarrassment to the country and devoid of any seriousness and adherence to the rule of law and facts one would expect from any court, let alone the Supreme Court.
How can any court dismiss a case on the basis the petitioner did not present enough evidence while knowing fully well that evidence was, in fact, presented but the court elected to throw it out?
Even if one were to assume there was some sound legal reason to dismiss the evidence, the court still had before it enough evidence to rule in favor of the petitioners. But it chose not to for reasons best and only known to it and those who may have helped nudge it in that direction. We’re not here talking about the lawyers who presented cases for their respective clients.
Any objective person analysing the circumstances and facts presented to the court would have concluded that, and still must conclude, the best outcome the court should have effected was finding neither Uhuru nor Raila garnered enough votes to meet the constitutional threshold of 50%+1 to be sworn in as president.
The court should have then ordered a run-off between the two or even a re-run of the presidential elections.
It’s not true as many contended that Raila would have easily beaten Uhuru in a run-off; in fact, it’s very likely with the help of rigging which would have inevitably and unavoidably taken place, Uhuru would have emerged the winner of the elections after all.
Had that happened, it would have been bad for democracy but good for the Supreme Court for it would have received an imprimatur by the public as a noble institution where the rule of law is finally inaugurated as paramount.
Democracy, on the other hand, would have waited another day to take hold, which would have been much easier given at least we would have had in place a strong foundation of the rule of law as would have been expressed and impregnated in our nation with such Solomonic ruling of the court, if there was one.
That did not happen so now what we have is a country divided as to its belief whether or not democracy is still alive and certainly without any doubt one cannot objectively look to the Supreme Court for guidance as to what law and justice requires when it comes to adjudicating cases and controversies.
Put another way, the Supreme Court in one of its most important and likely the only such a decision it would ever make, rendered a decision and opinion that puts it at par with what you would expect from the Supreme Court of any country where the court’s independence and jurisprudential competence exists only on paper.
We were there not too long ago and for many decades one can make an easy case we’re right back there with this absurd decision by the Supreme Court to dismiss Raila and AfriCog’s petitions notwithstanding the facts and circumstances that cried and begged for a different outcome.
It’s doubtful the Supreme Court can easily erase or reverse what it did in these petitions and, in the irony of ironies, Kenyans must now look to the lower courts as the only place they can expect justice.
To our luck, there are competent, rock solid judges and justices in those courts unafraid of rendering the right decision not for their own sake or others but for the sake of justice and rule of law.
That’s the only saving grace in all of this and what a shame when we had come so far in elevating our Supreme Court to such high levels of expectation and nobility only to have that crushed into pieces in one blow.
Meanwhile, having rendered this decision which shall forever taint the Supreme Court much as the Dread Scott case did to the US Supreme Court, Chief Justice Mutunga has since then shown his displeasure at being told the truth about what the court did by lashing out at those criticizing the decision.
The Chief Justice may do so as it’s his right under the constitution much as anyone else who feels compelled to defend himself or herself against such criticism but the very fact the Chief Justice is writing missives in papers defending what he and his colleagues did goes to show he’s failed to learn something one may suggest for those serving in his position and that’s, let the wisdom of your judgment and sound reasoning from the bench do the defending for you.
Everything else is an exercise in futility besides further eroding whatever goodwill and confidence the public may have for you and the court.
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