Dragoon
JF-Expert Member
- Nov 24, 2013
- 7,012
- 8,139
NASA HAS ABUSED THE COURT PROCESS
The ongoing electoral saga in Kenya has embarked on new face after withdrawal of the NASA Coalition from the upcoming Presidential election. Several reasons for the decision have been issued by Mr. Odinga, a candidate from the coalition representing ODM, the basic being that the IEBC has failed to call a lawful election.
Mr. Odinga has indeed failed to honour the supreme court’s decision which lied on his favour. The court, after declaring the Presidential election held on August this year a nullity, urged IEBC to hold a fresh free and fair election. The IEBC heeded and arranged for a fresh election scheduled for 26th October this year.
NASA tosses allegation that there is no intention on the part of the IEBC to undertake any changes to its operations and personnel to ensure that the “illegalities and irregularities” that led to the invalidation of the August election do not happen again.
In that regard, it is over that NASA has made as self-interpretation of the Supreme Court majority judgment [petition No. 1/2017 –Raila Odinga & Another v IEBC & Others] and self-appointed (herself) a court executor. This is amounts to usurping the courts powers.
The supreme court findings are clear. It did not issue any order for amendment of Electoral laws or the Constitution. It did not even hold the IEBC officers guilty of any misconduct rendering their resignation or impeachment from office. It firmly held at para 386 of the majority judgment:
Besides, NASA cannot now legally claim misconduct and intervention of JUBILEE into the IEBC in so far as the Supreme Court did not expressly hold so. The court addressed this issue in paras 228 to 333 of the majority judgment.
NASA, through Mr. Odinga maintains that the election must be conducted afresh with nomination of candidates. The basis of this argument emanates from the Supreme Court decision in Raila Odinga v IEBC & Others, El. Petition no 5/2013 where the court said at para 290:
Article 138 (8) of the Constitution of Kenya, 2010 stipulates thus:
Strictly construed, the Constitution gives no room for a fresh election if a candidate withdraws from the electoral quest. The 2013 Supreme Court opinion must have been misconstrued by the NASA coalition. There are a number of reasons to why the court’s opinion is not good law thus should not be followed, these are, to mention albeit a little:
1. The opinion did not form the ratio decidendi of the case.
2. The opinion was not the basis of the decision and was not an issue before the court.
3. The opinion was not followed or allowed or even considered by the majority decision in the recent celebrated case, which is the basis of the election re-run.
4. The opinion cannot override provisions of the Constitution
5. The opinion is qualified.
The 2013 Supreme Court opinion, on which the NASA rely, is qualified in the sense that it would apply only if an electoral candidate dies and leaves a vacancy which will amount the courts order of re-run of election a nugatory if such a vacancy is not replaced.
In our jurisprudence, judges make laws. However, such law-making should not defeat statute or result to conflicts with the Constitution. If that happens, the Constitution or any other statute prevails regardless the court’s dictum strength to the eyes of lawyers.
Njoki, SCJ, kept an eye on this and warned the court (Raila odinga case 2017). In his dissenting opinion, he followed the dictum enunciated in Olum vs. The Attorney-General of Uganda [2002] E.A. 508, thus:
He further cited Re Kenya National Human Rights Commission, Supreme Court Advisory
Opinion Reference No. 1 of 2012, where the Kenyan supreme Court held as follows:
The NASA urges that their withdrawal from the scheduled election implies that the election headed on the 26th October stands cancelled, and the provisions of Article 138(1) (b) of the Constitution would become applicable, with fresh nominations ensuing. Without hesitation, this is an abuse of the court process and amounts to rape the Kenyan voters. Mr. Odinga and his colleagues might have thought and still think of rushing to court if it happens the election is held as scheduled. It seems now Mr. Odinga is using the court as a sword against his political rivals.
Justic J. B. Ojwang, had cast onto this in his dissenting opinion (Raila Odinga Case, 2017). He states at para 191:
Mr. Odinga and the NASA at large are illegally trying to assume the powers of the voters of Kenya, and unlawfully trying to run the business of the IEBC, abusing and usurping the powers and jurisdiction of the Supreme Court.
The ongoing electoral saga in Kenya has embarked on new face after withdrawal of the NASA Coalition from the upcoming Presidential election. Several reasons for the decision have been issued by Mr. Odinga, a candidate from the coalition representing ODM, the basic being that the IEBC has failed to call a lawful election.
Mr. Odinga has indeed failed to honour the supreme court’s decision which lied on his favour. The court, after declaring the Presidential election held on August this year a nullity, urged IEBC to hold a fresh free and fair election. The IEBC heeded and arranged for a fresh election scheduled for 26th October this year.
NASA tosses allegation that there is no intention on the part of the IEBC to undertake any changes to its operations and personnel to ensure that the “illegalities and irregularities” that led to the invalidation of the August election do not happen again.
In that regard, it is over that NASA has made as self-interpretation of the Supreme Court majority judgment [petition No. 1/2017 –Raila Odinga & Another v IEBC & Others] and self-appointed (herself) a court executor. This is amounts to usurping the courts powers.
The supreme court findings are clear. It did not issue any order for amendment of Electoral laws or the Constitution. It did not even hold the IEBC officers guilty of any misconduct rendering their resignation or impeachment from office. It firmly held at para 386 of the majority judgment:
“Regarding prayer (l), we have shown that IEBC did not conduct the 8th August 2017 presidential election in conformity with the Constitution and electoral law. Irregularities and illegalities were also committed in a manner inconsistent with the requirement that the electoral system ought to be inter alia simple, verifiable, efficient, accurate and accountable. Although the petitioners claimed that various electoral offences were committed by the officials of the 1st respondent (IEBC) no evidence was placed before us to prove this allegation. What we saw in evidence, was a systemic institutional problem and we were unable to find specific finger prints of individuals who may have played a role in commission of illegalities. We are therefore unable to impute any criminal intent or culpability on either the 1st and 2nd respondent, or any other commissioner or member of the 1st respondent. We are similarly unable to find any evidence of misconduct on the part of the 3rd respondent. The prayer is therefore disallowed”.
Besides, NASA cannot now legally claim misconduct and intervention of JUBILEE into the IEBC in so far as the Supreme Court did not expressly hold so. The court addressed this issue in paras 228 to 333 of the majority judgment.
NASA, through Mr. Odinga maintains that the election must be conducted afresh with nomination of candidates. The basis of this argument emanates from the Supreme Court decision in Raila Odinga v IEBC & Others, El. Petition no 5/2013 where the court said at para 290:
“Suppose, however, that the candidates, or a candidate who took part in the original election, dies or abandons the electoral quest before the scheduled date: then the provisions of Article 138(1) (b) would become applicable, with fresh nominations ensuing”.
Article 138 (8) of the Constitution of Kenya, 2010 stipulates thus:
“A presidential election shall be cancelled and a new election held if—
(a) no person has been nominated as a candidate before the expiry of the period set for the delivery of nominations;
(b) a candidate for election as President or Deputy President dies on or before the scheduled election date; or
(c) a candidate who would have been entitled to be declared elected as President, dies before being declared elected as President".
(a) no person has been nominated as a candidate before the expiry of the period set for the delivery of nominations;
(b) a candidate for election as President or Deputy President dies on or before the scheduled election date; or
(c) a candidate who would have been entitled to be declared elected as President, dies before being declared elected as President".
Strictly construed, the Constitution gives no room for a fresh election if a candidate withdraws from the electoral quest. The 2013 Supreme Court opinion must have been misconstrued by the NASA coalition. There are a number of reasons to why the court’s opinion is not good law thus should not be followed, these are, to mention albeit a little:
1. The opinion did not form the ratio decidendi of the case.
2. The opinion was not the basis of the decision and was not an issue before the court.
3. The opinion was not followed or allowed or even considered by the majority decision in the recent celebrated case, which is the basis of the election re-run.
4. The opinion cannot override provisions of the Constitution
5. The opinion is qualified.
The 2013 Supreme Court opinion, on which the NASA rely, is qualified in the sense that it would apply only if an electoral candidate dies and leaves a vacancy which will amount the courts order of re-run of election a nugatory if such a vacancy is not replaced.
In our jurisprudence, judges make laws. However, such law-making should not defeat statute or result to conflicts with the Constitution. If that happens, the Constitution or any other statute prevails regardless the court’s dictum strength to the eyes of lawyers.
Njoki, SCJ, kept an eye on this and warned the court (Raila odinga case 2017). In his dissenting opinion, he followed the dictum enunciated in Olum vs. The Attorney-General of Uganda [2002] E.A. 508, thus:
“[T]he entire Constitution has to be read as an integrated whole and no particular provision destroying the other but each sustaining the other. Constitutional provisions must be construed as a whole in harmony with each other without insubordinating any one provision to the other”.
He further cited Re Kenya National Human Rights Commission, Supreme Court Advisory
Opinion Reference No. 1 of 2012, where the Kenyan supreme Court held as follows:
“It must mean interpreting the Constitution in context. It is the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation does not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result”.
WHAT IS THE MOTIVE OF NASA’S WITHDRAWAL FROM PROPOSED ELECTION
The NASA urges that their withdrawal from the scheduled election implies that the election headed on the 26th October stands cancelled, and the provisions of Article 138(1) (b) of the Constitution would become applicable, with fresh nominations ensuing. Without hesitation, this is an abuse of the court process and amounts to rape the Kenyan voters. Mr. Odinga and his colleagues might have thought and still think of rushing to court if it happens the election is held as scheduled. It seems now Mr. Odinga is using the court as a sword against his political rivals.
Justic J. B. Ojwang, had cast onto this in his dissenting opinion (Raila Odinga Case, 2017). He states at para 191:
“The foregoing principle was constantly reflected in the Supreme Court’s decisions rendered in 2013 and after – as is exemplified in George Mike Wanjohi v. Steven Kariuki and Two Others, Sup. Ct. Petition No. 2A of 2014, [2014], eKLR. In that case the Court thus pronounced itself [para.131]:
This Court should in principle, not substitute a sitting [elected representative] with another, without allowing the people to execute their political rights, as enshrined under the Constitution. To do otherwise would be to undermine the values and principles of democratic governance that bind us, in the execution of our judicial authority. It would also lead to an upset in the composition of the elected [office-holders] who bear the people’s sovereignty, and would stand out as a clear disregard of the founding provisions of the Constitution”
Mr. Odinga and the NASA at large are illegally trying to assume the powers of the voters of Kenya, and unlawfully trying to run the business of the IEBC, abusing and usurping the powers and jurisdiction of the Supreme Court.