Dis­sent­ing judges’ rul­ings on Nasa election pe­ti­tion de­serve at­ten­tion


On Septem­ber 1, the ma­jor­ity of judges of the Supreme Court de­ter­mined that fresh pres­i­den­tial elec­tions must be held. As a re­sult, on Oc­to­ber 17, Kenyans will go to the polls to cast their bal­lots for their pre­ferred pres­i­den­tial can­di­date.

The cur­rent de­bate has fo­cused pri­mar­ily on the rul­ing by the four judges of the Supreme Court but very lit­tle com­men­tary, if any, has been made on the dis­sent­ing judg­ments by judges Njoki Ndung’u and Jack­ton Ojwang’.

Kenya fol­lows the com­mon law le­gal sys­tem as op­posed to the Ro­mano-ger­manic sys­tem, com­monly known as the civil law le­gal sys­tem.

How­ever, through­out his­tory, it has not been un­com­mon for mi­nor­ity judges to come up with dif­fer­ent ju­di­cial find­ings con­trary to the ma­jor­ity. This is per­fectly within their man­date and, in this in­stance, Kenyans are ex­pect­ing three judg­ments that will be de­liv­ered as promised within 21 days of the Supreme Court rul­ing, where the ma­jor­ity had their way while the mi­nor­ity will have their say.

Hav­ing been a stu­dent of Prof Ojwang, I have the high­est of un­bound ad­mi­ra­tion for his im­par­tial­ity and in­tel­lec­tual hon­esty.”

Le­gal knowl­edge

How­ever, as we wait for the ju­di­cial of­fi­cers to de­liver the full judg­ments, one by four judges, in­clud­ing Chief Jus­tice David Maraga; and two oth­ers by Jus­tice Ndung’u and Jus­tice Ojwang, it is im­por­tant to ap­pre­ci­ate that Kenya is on a road to evolv­ing its own le­gal knowl­edge or what lawyers call ju­rispru­dence, since the pro­mul­ga­tion of our lib­eral Con­sti­tu­tion on Au­gust 27, 2010. Un­der the cir­cum­stances, it is im­por­tant to note that the Supreme Court, be­ing the high­est court whose judg­ments are fi­nal and bind­ing to all the lower courts, though not to it­self, is, in­deed, a cre­ation of the Con­sti­tu­tion.

Through­out his­tory, dis­sent­ing judg­ments have had a pro­found and in­flu­en­tial im­pact on the sub­se­quent de­vel­op­ment of laws ren­dered by the mi­nor­ity judges. Glar­ing ex­am­ples are the de­ci­sions by the late Lord Den­ning of Eng­land, whose many judg­ments were of­ten in the mi­nor­ity but those de­ci­sions later shaped the le­gal think­ing by evolv­ing crit­i­cal ju­rispru­dence in the jus­tice sys­tem of Eng­land and in­deed the whole of the Com­mon­wealth.

Hav­ing been a stu­dent of Prof Ojwang, I have the high­est of un­bound ad­mi­ra­tion for his im­par­tial­ity and in­tel­lec­tual hon­esty. I, there­fore, look for­ward with a lot of cu­rios­ity to read­ing his mi­nor­ity judg­ment. I be­lieve Kenyans can ex­pect in­tel­lec­tual rigour, can­dour and well-rea­soned judg­ment given his in­de­pen­dence of thought, a fact many of his for­mer stu­dents will at­test. It is equally go­ing to be ex­cit­ing to read the judg­ment by Jus­tice Ndung’u. Their find­ings will prob­a­bly rank equally im­por­tant to that of the ma­jor­ity in the de­vel­op­ment of Kenya’s ju­rispru­dence.

Many law prac­ti­tion­ers are anx­iously wait­ing for the three Supreme Court judg­ments, which will mark a ma­jor de­par­ture from the 2013 unan­i­mous de­ci­sion that up­held Mr Uhuru Keny­atta as the elected Pres­i­dent.

Be­sides the po­lit­i­cal im­pli­ca­tions of the six judges’ judg­ments, ju­di­cial his­tory will in­evitably be made. In keep­ing with the doc­trine of sep­a­ra­tion of pow­ers to which the 2010 Con­sti­tu­tion en­trenched in our gov­er­nance as a con­se­quence, hope­fully, Kenya will be on the right track in demon­strat­ing the value of the in­de­pen­dence of the three branches of govern­ment — the Par­lia­ment, the Ex­ec­u­tive and the Ju­di­ciary.

This in­de­pen­dence, how­ever per­ceived, will go a long way in nur­tur­ing and build­ing con­fi­dence in in­sti­tu­tions while strength­en­ing our democ­racy by en­trench­ing the doc­trine of the rule of law and due process as an in­stru­ment of gov­er­nance of our coun­try.

Nev­er­the­less, democ­racy comes with a huge price tag. This is man­i­fest when you con­sider the pro­posed Sh12 bil­lion bud­get en­vis­aged to be ap­pro­pri­ated by Par­lia­ment to meet the cost of a fresh pres­i­den­tial election, to which the Kenyan tax­payer must and will pay.

The writer is an ad­vo­cate of the High Court of Kenya.

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