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{
    "id": 755946,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/755946/?format=api",
    "text_counter": 225,
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    "content": "First, this is because the courts were not taking into account the rights of the victims of the crime. Secondly, you may have a situation where people who have done such grave and bad things may conspire with the police and cause to be arrested to stay for longer than 24 hours. Therefore, you vitiate justice through a simple technicality. The courts proceeded to say that if you are arrested for more than 24 hours, your case will still proceed, you will be arraigned in court and the case will not be rendered a nullity. However you may get other reliefs like compensation. My point is, that was an era which was brought about by this verdict where you find a situation where yes, the Independent Electoral and Boundaries Commission (IEBC) may have breached the Constitution and the electoral laws, but you must take into account the right of the innocent voter and other participants like, for example, His Excellency President Uhuru Kenyatta, who was not a party to that breach of the Constitution and law by the IEBC. The so-called breach of the Constitution or Elections Act should also take into account the rights of innocent parties in that process. In this instance, President Uhuru Kenyatta was an innocent party. In fact, the Supreme Court made a finding to that effect. Therefore, it was very unfair for the Supreme Court to nullify the election and fail to take into account the rights of President Uhuru Kenyatta. The best relief would have been either to offer compensation to Rt. Hon. Raila Odinga, as per the jurisprudence that was settled by the Court of Appeal when interpreting Article 49(1) (f), in that case, where accused persons were held for more than 24 hours. Based on that, I think the standard that was set by this case may be very dangerous. We may find a situation where people will conspire with the officials of the Independent Electoral and Boundaries Commission (IEBC) in subsequent elections. We will have cases where forms are not signed or stamped and then people go to court and nullify that election. The best standard was the one that was established by the Supreme Court in 2013. The jurisprudence by the 2013 Supreme Court was very simple. You may find a breach of the Constitution or law, but you must demonstrate how those breaches materially affect the results. That is a very good principle. However, the one that has been set out by the Supreme Court now will open a Pandora’s box. Innocent people who campaigned are now being exposed to nullification of elections notwithstanding the fact that they were not party to those irregularities. I pray that one day we will have a more progressive Supreme Court that will apply its mind to the correct jurisprudence of elections. This is because we are referring to the rights of voters and President Uhuru Kenyatta who the court has clearly said is an innocent party. The Executive should also have foresight when it comes to some of the appointments. I was a Member of the Justice and Legal Affairs Committee in the National Assembly and raised an objection to the appointment of one of the senior persons who sits in that Supreme Court. My warning was not taken into account, but I wish it was. Most likely, we would not be encountering the problems we have now. When you look at how other democracies appoint Supreme Court judges, they are usually very strategic. In the United States of America (USA), for example, candidates are interviewed or analysed to determine their philosophical foundations. If you are a democrat you may find a judge who is conservative on issues of abortion or gay rights. If"
}