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Post by Omwenga on Apr 28, 2013 0:52:26 GMT 3
In More Reasons Why Supreme Court Ruling Is Shameful, I continue my analysis of the unfortunate and embarrassing Supreme Court opinion attempting to justify dismissal of former Prime Minister Raila Odinga and AfriCog’s petitions which as this series clearly shows was an opinion few will disagree is intellectually shallow, a sham and embarrassment to the court itself and country. This is not an assertion made lightly or without clear thinking and analysis of the opinion objectively but I have yet to find anyone who can make the case this is not the case. That being the case then this must be the case the question is, what next? What should be the take-away from all of this, especially given this unfortunate and embarrassing decision? That will be answered in Part III and the final part of this series. |
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Post by jakaswanga on Jul 21, 2014 21:59:53 GMT 3
Oyominto,
Over the last few days, if you have had the time to pay attention to the considered opinions emanating from the fraternity of learned friends, including the official organisation of the professionals -the LSK, you would have allowed yourself a moment of self indulgent hurrahs of vindication.
they have been analysing the differences in judgements between the high court, the appeal court, and the supreme court, respective cases6 arising from the elections 2013. AND CJ Mutunga's intellectual bubble or fraud can no longer be sustained. THERE seems to be a strange demand from high up, that the Raila ruling, the petition against uhuru's victory declaration, be used as the yardstick. Regardless of the facts and merits of each new case. Then there is6 the other consensus7, that that ruling was a fudge which can not serve as a precedent.
but there we are! Stuck with the stupidity of the Mutunga ruling! Slowly the courts are revealing just how really u bandia they6 work! Even fellow lawyers can no longer bear the nuisance the highest judges are making of thrmselves!
And you? You recognised it straightaway.
t
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Post by jakaswanga on Jul 22, 2014 20:57:29 GMT 3
Oyominto, Over the last few days, if you have had the time to pay attention to the considered opinions emanating from the fraternity of learned friends, including the official organisation of the professionals -the LSK, you would have allowed yourself a moment of self indulgent hurrahs of vindication. they have been analysing the differences in judgements between the high court, the appeal court, and the supreme court, respective cases6 arising from the elections 2013. AND CJ Mutunga's intellectual bubble or fraud can no longer be sustained. THERE seems to be a strange demand from high up, that the Raila ruling, the petition against uhuru's victory declaration, be used as the yardstick. Regardless of the facts and merits of each new case. Then there is6 the other consensus7, that that ruling was a fudge which can not serve as a precedent. but there we are! Stuck with the stupidity of the Mutunga ruling! Slowly the courts are revealing just how really u bandia they6 work! Even fellow lawyers can no longer bear the nuisance the highest judges are making of thrmselves! And you? You recognised it straightaway. t[/quotehttp://www.nation.co.ke/news/Whos-smarter-now-Questions-as-Supreme-court-halts-Appeal/-/1056/2390742/-/rg53acz/-/index.html |
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Post by jakaswanga on Jul 22, 2014 21:01:18 GMT 3
www.nation.co.ke/news/Whos-smarter-now-Questions-as-Supreme-court-halts-Appeal/-/1056/2390742/-/rg53acz/-/index.htmlWho’s smarter now? Questions as Supreme court halts Appeal rulings By GEORGE KEGORO . IN what has created the impression of an Internal war in the Judiciary, the Supreme Court this past week overturned two judgments of the Court of Appeal, reinstating a Member of Parliament and a governor whose election appellate judges had nullified.Only a day after nullifying a decision of the Appeal Court in the Sinyalu parliamentary seat, and reinstating Silverser Lisamula as MP, the Supreme Court restored Zachary Obado as Migori governor, overturning a judgment of the Court of Appeal that had invalidated his election.In total, the Supreme Court has nullified all the six decisions by the Court of Appeal on election petitions that were presented to it. These include the decision of the appellate court which had annulled the elections of two governors, Nathif Jama of Garissa, and Peter Munya of Meru, and two MPs, Fred Outa of Nyando and Othaya’s Mary Wambui.It is now widely expected that the trend the Supreme Court has set will be replicated in an appeal filed by Nairobi governor Evans Kidero, against a decision of the Court of Appeal that annulled his election.The Shinyalu petition was overturned on the same grounds as those that the Supreme Court had applied in overturning the Wambui case, a finding that the petition was filed out of the 28 days allowed by the Constitution for filing such petitions. The petitioner, Justus Kizito, had filed the original petition in the High Court within 35 days, which was seven days after the period allowed by the Constitution. As in the petitioner against Wambui, Kizito had calculated time on the basis of a provision in the Elections Act which provides that the computation of the 28 days starts from when the results are published in the Kenya Gazette.The Supreme Court, however, decided that this provision contravenes the Constitution and is, therefore, void, and that the correct starting point is the date when results are declared.The dispute surrounding the election of Jama, upheld by the High Court but overturned on appeal, revolved around multiple complaints including one that voting in one polling station was done on March 5, 2013, a day after polling in the country had closed.While the Court of Appeal overturned the decision of the High Court dismissing the petition, its own decision was then dismissed by the Supreme Court which held that no demonstration had been made that the noted irregularities had an effect on the election results.The Meru petition was a microcosm of the presidential election petition. It was not in dispute that a partial scrutiny ordered by the High Court on the results for a limited number of polling stations showed multiple computation errors. What was in dispute was the effect of the errors on the final results.Reverse decisionThe High Court found that they were not material in determining the results but the Court of Appeal found that the “declared results are not accurate, verifiable and accountable” and further that “the tallying process was not efficient and accurate”, and, therefore, reversed the decision of the High Court.This was one of the issues in the presidential petition. On that occasion, the Supreme Court skirted around the issue and did not make clear findings. This failure forms part of the criticism affecting the judgment in the presidential petition.As in the presidential petition, the voter register was an issue in Meru. The petitioner alleged a higher voter turnout in a number of polling stations than was provided in the register published by the IEBC on its vwebsite. The validity of this specific register was challenged, with the High Court favouring a view that this was not an official document.In overruling the High Court, the Court of Appeal took the view that the IEBC, as the custodian of the register, could not dispute a register on its own website. The Supreme Court, however, found that no proof of the allegation of over-voting had been established as would have required the IEBC to authenticate the number of voters in its register.Elections ActIn all the decisions by the Supreme Court, much had been made about the proper jurisdiction of the Court of Appeal. The Elections Act provides that, regarding electoral disputes, the jurisdiction of the court is limited to appeals from the High Court on “matters of law”.A general grievance before the Supreme Court has been that contrary to this restriction, the Court of Appeal has descended into making determinations of fact, as opposed to determinations of law.In the specific case of the Meru petition, the allegation was that the Court of Appeal considered issues of fact, which it had no power to entertain and that, in doing so, it occasioned an injustice towards Mr Munya.ttp://www.nation.co.ke/news/Whos-smarter-now-Questions-as-Supreme-court-halts-Appeal/-/1056/2390742/-/rg53acz/-/index.html
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Post by jakaswanga on Jul 22, 2014 21:22:01 GMT 3
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Post by jakaswanga on Jul 22, 2014 21:25:15 GMT 3
By ELVIS ONDIEKI 19-07-2014
lawyers have warned that an ideological war between the Court of Appeal and the Supreme Court may lead to public distrust of the justice system.The Supreme Court has so far fundamentally disagreed with the Appeal Court in seven different election cases. While some lawyers see the move as an attempt by the Supreme Court to reinforce its jurisprudence stemming from the Raila Odinga election petition against President Uhuru Kenyatta, others think the institution has fallen victim to what critics say is the “low threshold” it set in the handling of election cases in the Odinga petition.Another emerging narrative is that the Supreme Court may have been reluctant to nullify elections in the seven cases brought before it for fear of vindicating the Cord argument that the March 2013 election was not free and fair, having declared that the polls were credible. However, the main focus now seems to be the impact of the decisions on the standing of the Appeal Court whose decisions it has dismissed with apparent glee.Law Society of Kenya chairman Eric Mutua says there is a possibility of Kenyans rebelling against the Court of Appeal because of its “poor score in handling election cases”.
“As lawyers we cannot do much because the court has a final say. But the public might find a reason to demand its disbandment,” Mr Mutua cautioned.The latest Supreme Court decision came on Thursday, in which Okoth Obado was confirmed as the Migori governor together with a declaration that the Court of Appeal wandered beyond its jurisdiction when it weighed the evidence tendered at the High Court.The day before, Mr Silverse Anami left the Supreme Court a happy man as Shinyalu MP after a decision that his case was a non-starter because it had been filed out of time.The highest court has similarly differed with appellate judges in cases touching on Mombasa governor Hassan Joho, Othaya MP Mary Wambui, Meru governor Peter Munya, Nyando MP Fred Outa and Garissa governor Nathif Jama.On February 4, a five-judge bench ruled that a case against Mr Joho should not have been entertained because it was filed out of time. On May 5, the judges of the highest court threw out a case against Ms Wambui for similar reasons. They reversed an Appeal Court judgment that nullified Ms Wambui’s election due to breaches of the electoral law.Mr George Kegoro, the executive director of the International Commission of Jurists - Kenya Chapter, took issue with the court’s decision on Ms Wambui’s case in his opinion in the Saturday Nation on May 10, 2014, saying it was making the Supreme Court look as unpredictable and in love with technicalities as the Moi-era Court of Appeal.Governor Munya would be the next beneficiary of the Supreme Court judgment. On May 30, 2014, his election was confirmed with the reversal of a Nyeri court’s decision that ordered a by-election because of the election not being verifiable.On July 3, the Bench led by Chief Justice Willy Mutunga said Mr Outa will continue serving as Nyando MP, dismissing a Court of Appeal finding that there was concrete evidence to prove that he used Constituency Development Fund cheque disbursements to bribe voters. A similar jab was thrown at the Court of Appeal on July 9 when Governor Jama was confirmed in his position with a ruling that the Appellate Court overstepped its jurisdiction.An analysis of the decisions of the Supreme Court reveals that it insists on courts abiding by the position it took in the presidential petition.A good example is in the decision reinstating Mr Obado as governor, where the judges said: “The appellate court misdirected itself in failing to follow the binding precedent set by this court in the Raila Odinga case, which enjoins that a court is to consider the effect of the alleged irregularities on the election result, before nullifying an election.”Abide byThe Supreme Court equally requires courts to abide by its early decision on when a party is said to be in a position to prove wrong the allegations by another, known in legal terms as the shifting of the burden of proof.In reinstating Mr Outa, for instance, the court said: “In our decision in the Raila Odinga case, regarding the burden of proof in election petitions, we said that ‘... the threshold of proof should, in principle, be above the balance of probability, though not as high as beyond reasonable doubt."Critics of the Supreme Court are uneasy with its insistence on using its findings in Mr Odinga’s case as the yardstick to decide other cases.“The Supreme Court is increasingly relying on the Raila Odinga case to dismiss or adjudicate on a number of other cases. It is causing a lot of confusion,” said Prof Ben Shihanya, a law lecturer.Mr Mutua said: “In our view, the decision made in the presidential petition was wrong. The Supreme Court improperly set high standards in terms of what forms malpractices that can lead to an election being nullified.”Mr Shihanya agreed with the LSK boss, saying the trend risks causing a crisis of confidence in the justice system. The decision on the Raila case was faulted by legal practitioners who argued that it will set a bad precedent. Constitutional lawyer Wachira Maina said the court wrongly relied on a “backward-looking, mean-spirited and cramped Nigerian precedent”. “The Supreme Court has only given us reasons that sound good; not good, sound reasons,” he said.Lawyers argued that the verdict may have raised the threshold for one to overturn a poll result but lowered the standards for managing and conducting an election.Another bone of contention is a provision that the Court of Appeal should only handle matters of law as opposed to matters of fact. The Supreme Court, in cases where it declared that the lower court went beyond its jurisdiction, reprimanded appellate judges, saying that they misinterpreted matters of law.The judgments equally exposed the inherent quarrel between the two courts as regards upholding the Constitution and learning from history.In Mr Obado’s case, for example, the three-judge appellate Bench that handled the matter noted that the errors posted by the electoral commission were proof that it had not learnt from the 2007 post-election violence.“The kind of irregularities and mistakes committed ... are the same mistakes noted by the Kriegler Report on the bungled 2007 presidential election that were re-enacted by a different cast, begging the question whether there were any lessons learnt from the outcome of the 2007 General Election,” said Justices Onyango Otieno, William Ouko and Sankale ole Kantai.The Supreme Court responded that the Court of Appeal should not have focused on the irregularities.In the Shinyalu case appellate judges were perturbed by the fact that violence the night before the election led to the burning of a vehicle belonging to aspirant Justus Kizito.“Other than causing some voters to stay away or abstain from voting, the other consequence is that the rumour of [Mr Kizito] having died caused a number of those who voted cast their votes to persons rather than him,” said Justices Onyango Otieno, Patrick Kiage and Agnes Murgor, adding that such an election did not meet the constitutional standard of being free and fair.The LSK boss explained that the Supreme Court is eager to justify its early decisions, which can put litigants at risk. He said: “We don’t understand how the 26 judges of the Appeal Court can be wrong and the seven of the Supreme Court say they are right all the time.”The highest court, he said, was fast following the “draconian” footsteps of the old Court of Appeal. However, the situation may be remedied when different judges replace those currently at the helm of the Supreme Court.More in Section'Stop fighting' UN chief tells Israel, PalestiniansMore in SectionQueen joins party as Prince George turns one
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