If we want to fix the Bench we must put the screws back into the Constitution

To his supporters, Bobi Wine’s withdrawal from the Supreme Court of his presidential election petition is yet another brilliant move on this political chess board. It, the argument goes, exposes and rejects partisanship and bias on the highest bench in the land. To his critics, however, this is just gamesmanship. The petition, they argue, wasn’t worth the paper it was written on, was a waste of time, and a dismissal waiting to happen.

The truth lies somewhere in-between, and whatever one’s political hues, it is of the bitter variety. 

Let’s begin with the bench itself. This is not the first time allegations have been made about partisanship in the Judiciary, or even in the Supreme Court itself in such fashion. Justice George William Kanyeihamba, now retired but who once sat on the Supreme Court itself, went as far as detailing allegations of Executive interference in the court as judges prepared to deliver their verdict in the 2001 presidential election petition. 

Sadly, some of the judges with first-hand experience of these matters are no longer with us and cannot defend or explain themselves. Yet just because judges might have been strong-armed in the past doesn’t mean that they are being strong-armed this time round. Except where there is evidence to the contrary, we should give other people the benefit of the doubt.

We should also focus on the bigger picture, and there are two in this case in my view. The first is that the kerfuffle over this petition has peeled away the plaster and exposed the wounds that life-term incumbencies inflict to institutions meant to hold them in check.

The authors of our Constitution wrote it with certain assumptions in mind, one of which was that there would be regular change at the top of the Executive enforced by term limits. Certain powers were thus given to the presidency, comforted by that knowledge.

When the term limits were fraudulently lifted in 2005 - which, in this column’s view was the political crime of the century – the entire Constitution ought to have been relooked at to see how power could be abused by what, in effect, had become a life presidency. For instance, the tenure of the Supreme Court could have been similarly opened up and their independence locked in to protect them from the tyranny of Executive incumbency.

In layman’s language, the biggest problem isn’t that CJ Alfonse Owiny-Dollo once represented or worked closely with the incumbent; it is that after 35 years, it is hard to find judges who haven’t, and the incumbent has no incentive to pick from the basket of those who disagree with him. It is the term limits, stupid!

The second problem emerges from the first. A Judiciary in a country just building constitutionalism and related institutions cannot act nonchalantly in a manner that’s oblivious to the counter-revolutionary attacks on democracy. Judges in such a situation can’t merely judge the cases that are brought to them but must take intellectual and ideological interest in the political environment within which those cases emerged. 

It would be moral and legal cowardice were the Supreme Court, as happened in previous petitions, to limit itself to examining whatever evidence a losing candidate, was able to smuggle past the bloody net of repression into the court. A presidential election petition is an opportunity for the Supreme Court to conduct a healthcheck into the governance of the country.

This goes beyond statistical evidence and the tyranny of numbers. How can you quantify the effect, in terms of ballots, of unfair access to public media, of restrictions on campaigning, on an unfair financial landscape, even of deadly violence? 

Fighting over which affidavits to admit or not feels like counting trees while missing the forest. We will never know, of course, now that this petition has fallen through the cracks, but previous rulings, including recommendations that have been ignored speak to a bigger problem of a constitutional crisis. 

You know you have a problem when candidates in an election are openly accused and blamed for not guarding their votes, as if that isn’t the work of the Electoral Commission and the law enforcement arms of the Executive. The deadly accidents before us have all been waiting to happen. If we want to fix the Bench we must start with putting the screws back into the Constitution.

Mr Kalinaki is a journalist and  poor man’s freedom fighter. 

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Twitter: @Kalinaki