THE LAYPERSONCourt discrepancies: Plan or flub?By Magaregikenyi BenjaminThe new development in the judicial processes leads us to get worried especially in regard to recent judgments. Though I am a layman in judicial matters, recent court rulings smell a rat, so to speak, from my point of view.
Are we seeing bias in our court rulings? Is the law being bent to justify specific rulings? In the field of medicine, we have what is called Hippocratic Oath that requires practitioners to treat all patients equally and provide the best medical care possible. But does this logic extend to the area of justice?Take for example the Supreme Court decision in Othaya by-election (King’ara vs Mary Wambui case). I have a feeling that the decisions made spoke volumes – or left a lot to be desired.(I have no interest in this case, I declare)In this case, the court agreed with Ms Wambui and used technicalities to strike out arguments and dismiss Mr King’ara’s petition on the account of late filling of the case.However, the same court and in the same case disagreed and dismissed King’ara’s arguments (late filing). Mr King’ara demonstrated that he had reasonable basis on which he computed time, that he relied on the Elections Act. The Court rejected his argument.(The law gives a 28 day window for one to file a petition. While the Constitution starts counting from the moment a returning officer announces results, the Election Act becomes active after gazettment) However, the courts rejected his argument that Ms Wambui filed the appeal 33 days late (instead of 30). In fact the judges said that it was within ‘public interest’ that her case be allowed. This came at a time when the IEBC was preparing for the by-election. Sh100 million had been used in the preparation.So, King’ara’s interest is not within the domain of “public interest”? Why is the public interest only applicable to Ms Wambui. What about the Sh100 million “public money” wasted in the by-election’s preparation? How do you determine public interest?At the same time during the 2013 presidential election petition, the judges disallowed Raila Odinga ‘s 800 page additional affidavit on technicalities. The Supreme Court said it it had been filed late. Now, was this case “not for public interest”?This brings memory of previous presidential elections especially of Kenneth Matiba ss Daniel Moi where the case was dismissed on the account of Matiba not personally signing petition papers notwithstanding his illness.What we are seeing is double standards in application of law. We see no uniformity.This new Constitution requires judicial officers to dispense justice without adhering to unnecessary technicalities.I have a feeling the Supreme Court has made itself a jack of all trades and a master of none by entertaining all manner of petitions. Hence we expect all MCA’s who lost petitions to head to the Supreme Court for the merits of the case and not on just matters of law as the Constitution requires.Then there is the issue of disobedience of court orders. Recall Justice Mumbi Ngugi’s quashing of the county commissioner position? Interestingly, the commissioners continue to stay without anybody being accused of contempt.However, I have witnessed situations where warrants of arrest were issued to a chicken thief who failed to come to court and the bond was canceled. This is like the proverbial animal farm when some animals are more equal than others.What even more worrying is the ‘unanimity in decision’ by the judges. As a layman, the reason why a bench of more than one judge is created is to ensure impartiality. However, in all these decisions all judges have made unanimous decision. Compare this to the ICC Judges in which in almost 90 per cent of judgments, we have at least one dissenting opinion, yet there are only 3-5judges.But in our cases, is it by chance or coincidence?Sadly, no one, including the Law society of Kenya(LSK), is raising this issue. It’s business as usual.Then, there is a trend where courts appear to justify mistakes by electoral body. They say the errors weren’t ‘big enough’ to invalidate results. This is a dangerous preposition as it will make any electoral body to behave carelessly since it’s allowable to do ‘small mistakes’ as humans.We need to relook at the inconsistencies.Indeed, instead of discussing emerging judicial concerns in low hushed tones in the social media and social joints lets be bold enough and have open discussions by all stake holders – including (but not limited to) Judiciary, Law Society of Kenya, and civil societiesAt the end of the day this will improve confidence in our courts and make Kenyan justice system a better place for all Kenyans. Dr Magaregikenyi is a medical doctor, Moi Teaching and Referral Hospital, Eldoret. This views are personal
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