Lawyers’ TV de­bate on Raila poll with­drawal failed to clar­ify is­sue

Daily Nation (Kenya) - - LETTERS | TO THE EDITOR -

Cit­i­zen TV this week of­fered view­ers an op­por­tu­nity to watch live dis­cus­sion on the le­gal and po­lit­i­cal im­pli­ca­tions of Nasa leader Raila Odinga’s with­drawal from the re­peat pres­i­den­tial elec­tion set for Oc­to­ber 26.

There were four lawyers on the panel and due to their ob­vi­ous po­lit­i­cal af­fil­i­a­tions, the dis­cus­sion lacked ob­jec­tive anal­y­sis of the is­sue. I had hoped mat­ters would be clearer af­ter the de­bate but I was dis­ap­pointed as this was not so. There was an end­less ar­gu­ment on whether Mr Odinga’s an­chor­ing of his with­drawal on the Supreme Court’s de­ci­sion on the 2013 pres­i­den­tial pe­ti­tion was a risky move or would lead to nom­i­na­tions for fresh elec­tions.

Two of the lawyers who ap­peared in­clined to­wards Ju­bilee said Mr Odinga’s move was base­less be­cause it re­lied on obiter dicta (a re­mark in a judg­ment that is said in pass­ing) while the other two, who seemed to be aligned to the Na­tional Su­per Al­liance, put up a strong case based on ra­tio de­ci­dendi (the le­gal prin­ci­ple upon which a de­ci­sion in a spe­cific mat­ter is founded).

What the panel to­tally failed to set­tle was the fol­low­ing: Is it al­ways ob­vi­ous from the court’s writ­ten de­ci­sion to iden­tify what are obiter dicta and what is ra­tio de­ci­dendi? If not, they have to be fig­ured out.

Se­condly, how does one de­ter­mine what por­tions of a court’s ver­dict, es­pe­cially in the 2013 pe­ti­tion, were obiter dicta and those that were ra­tio de­ci­dendi?

Frankly, it is not enough to sim­ply ar­gue that obiter dicta only has a per­sua­sive rather than a bind­ing im­pact on other courts of low rank in fu­ture cases.

Is the per­sua­sive value ex­clu­sive to all other courts ex­cept the one that made the “by the way ob­ser­va­tions”?

Lastly, it would be naive to ex­pect all lawyers to have the same views on par­tic­u­lar le­gal is­sues. How­ever, fail­ure to es­tab­lish com­mon ground on a mat­ter as fun­da­men­tal as the one that was dis­cussed raises the ques­tion of whether the le­gal fra­ter­nity is part of the so­lu­tion or prob­lem to Kenya’s loom­ing con­sti­tu­tional cri­sis.



The move by Mr Odinga to pull out of the re­peat poll has caught many of­f­guard. It has left the na­tion con­fused.

The pub­lic is won­der­ing what strat­egy the op­po­si­tion coali­tion has.

This move has left the coun­try in un­charted wa­ters. Very few coun­tries, if any, have found them­selves in such a po­lit­i­cal sit­u­a­tion.

The sit­u­a­tion de­serves praise as it shows the rate at which Kenya, as a coun­try, is ma­tur­ing. It also shows how far we are ready to ex­pand our demo­cratic space.

The sit­u­a­tion has firmly put both Pres­i­dent Uhuru Keny­atta and Mr Odinga in the his­tory books as great politi­cians of their time.



Na­tional Su­per Al­liance leader Raila Odinga ad­dresses a press con­fer­ence at the Okoa Kenya of­fices in Nairobi on Tues­day. He an­nounced his with­drawal from the Oc­to­ber 26 re­peat pres­i­den­tial elec­tion.

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