Friday, May 10, 2013

The Supreme Court Scored An Own Goal



For months, I have been waiting to tell the many who previously held the Chief Justice, Dr Willy Mutunga, in high regard, “I told you so”.
Now that moment has come. But first, a little background:
Few public officials have proved as adept at handling the public relations aspects of their jobs as the CJ.
And as a result of this, his early days in office were, essentially, a long triumphal procession, moving from one brilliant PR event to another. Many Kenyans had no doubt that we at last had found the one man worthy of this office – and that the days when the judiciary was rightly viewed as a central cog in the vast machinery of Kenyan impunity, were finally at an end.
But not everyone was so easily taken in. Personally, as I watched the sanctification of Dr Mutunga, ” I remembered what George Orwell had to say about Mahatma Gandhi: “Saints should always be judged guilty until they are proven innocent.”
Hence my column of July 2012, “Is Mutunga going to disappoint us?” which was intended to serve as a warning to the ‘Mutunga groupies’ that it was still too early to uncork the champagne.
I returned to the subject in February 2013, when in a column titled “Why there will be no violence” I took the liberty of expressing my personal opinion that the CJ was “an ear stud wearing poseur, who has yet to prove his mettle”.
My established status as an early critic of the CJ, now entitles me to intervene in the raging controversy over the Supreme Court’s affirmation of the IEBC’s declaration of Uhuru Kenyatta as the validly elected president of Kenya.
First, a word to the CJ’s critics: the example you should have in mind when considering this controversial judgment which you find so grievous, comes from the world of football:
During the 1986 World Cup, the legendary Argentinian striker, Diego Maradona, scored a controversial goal, using his hand. As the referee did not see that he used his hand, the goal was allowed. And Argentina then went on to beat England in that match.
Later, video clips of that game left no doubt how the goal had been scored.
But it is absolutely fundamental to the game, that the referee's word, however misguided, is absolutely final. Indeed if any human competition is to ever reach any kind of resolution on winners and losers, there must be a final arbiter; and the decision of that arbiter must be accepted by all competitors, however deeply it might upset some of them.
It is in such a light then, that the decision of the Supreme Court on the presidential election must be viewed.
You can get as upset as you want. But the Supreme Court’s decision is final on this. And all efforts to delegitimise Uhuru's presidency, must ultimately prove futile, since the Supreme Court has spoken.
However, the fact that you have to live with what you perceive to be an injustice does not mean that you have to like it. And this is where the bad news comes in for those who still retain their high opinion of the CJ.
We all saw what happened during the live transmission of the tallying process. And we also heard the arguments presented before the Supreme Court.
As such we are in the same position as those who later watched the video clips of Diego Maradona scoring a crucial goal with his hand: we know what really happened.
The Supreme Court’s decision is therefore viewed by a good many Kenyans, as being at odds with the events we saw with our own eyes.
It is pointless to explain to a layman, that the Supreme Court could only make a decision on the basis of evidence that was “properly before the court”.
Those disenchanted Kenyans are more inclined to agree with the legal counsel for Africog, Ms Kethi Kilonzo, that what took place during that tallying was “daylight theft”.
A layman’s understanding would be that providing an effective remedy against such theft is the primary duty of the Supreme Court. As such, there can be no comfort for the CJ.
For as long as he lives, Dr Willy Mutunga will regularly encounter the profound contempt and implacable hostility, of those who once naively believed that he promised them a new judicial dispensation.
For they now feel that he miserably failed to deliver on this promise, and that the Supreme Court ruling on the presidential petition, amounted to the Judiciary "scoring an own goal".

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