REPUBLIC OF KENYA IN THE SUPREME COURT OF KENYA AT NAIROBI (Coram: W.M. Mutunga, Chief Justice and President of the Supreme Court; P.K. Tunoi; M.K. Ibrahim; J.B. Ojwang; S.C. Wanjala; N.S. Ndungu, SCJJ.) PETITION NO. 5 OF 2013 -BETWEEN- RAILA ODINGA ..................................................................PETITIONER -AND- 1. THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION 2. AHMED ISSACK HASSAN 3. UHURU KENYATTA 4. WILLIAM SAMOEI RUTO .................RESPONDENTS AS CONSOLIDATED WITH PETITION NO. 3 OF 2013 -BETWEEN- 1. MOSES KIARIE KURIA 2.DENIS NJUE ITUMBI 3. FLORENCE JEMATIAH SERGON ........................PETITIONERS -AND- 1. AHMED ISSACK HASSAN .....................RESPONDENTS 2. THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION AND AS CONSOLIDATED WITH PETITION NO. 4 OF 2013 -BETWEEN- 1. GLADWELL WATHONI OTIENO 2. ZAHID RAJAN ............................PETITIONERS 1 -AND- 1. AHMED ISSACK HASSAN 2. THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION 3. UHURU KENYATTA 4. WILLIAM SAMOEI RUTO .....................RESPONDENTS JUDGMENT A. THE PRESIDENTIAL ELECTION OF 4TH MARCH, 2013:

It appears whiles freedom fighters like Aung San Suu Kyi are calling for the judiciary, as an institution, to be “strengthened and released from political interference”, our courts in Ghana find it ok to park the wheels of justice on the compounds of the legislature, expecting to be towed out of there at the pleasure of the executive. If ever there was a farcical case that the Supreme Court was ever called upon to exercise its constitutional powers in order to assert the independence of the judiciary in line with the doctrine of the separation of powers, and stay off any undue reach of the hands of the other two arms of government to frustrate the administration of justice, then the Bernard Mornah case was it.

Alas the recent uncertainty surrounding the pricing of petroleum products appears being resolved. The NDC led government which won the 2008 elections on the back of some populist promises on petroleum pricing has demonstrated some level of boldness. The new government had tied itself by some of its populist campaign messages to the Ghanaian public and voters that petrol could be sold for less than was being sold at the time (Dec. 2008 GHC3.80).It also campaigned that the cost was unbearable for Ghanaians and promised to reduce it drastically when voted into office. But only five months into the new administration, a gallon of petrol is selling for GHC5.00 while a barrel of crude oil is selling for US$68!

US President Barack Obama is prepared to broker peace and power-sharing agreement in South Sudan.

What will happen when the Supreme Court rules in the election dispute? Will there be peace or violence? That we were a divided country before December 7th is clear to all—after all, this is the second election in a row that the winner has failed to win 51% of the votes. Unfortunately, the court case following the election has only worsened the divisions and tensions. Of course, it can be argued that if the petitioners had chosen the streets instead of the courts, our plight would be worse. This case, regardless of the outcome, has already undermined quite a few reputations and national assumptions:

Policy think tank, Danquah Institute (DI) has raised an alarm over what it describes as the "strange and dangerous” manner in which the Mills-Mahama led National Democratic Congress government is trying to secure a $3 bn Chinese loan facility to finance a number of projects, including the Achimota-Ofanko Road, a $150 communications infrastructure for the National Security Council and a $100 million capacity building exercise for the Ghanaian SMEs.The Parliamentary Joint Committee of Finance and Poverty Reduction is currently meeting in Koforidua, ostensibly to scrutinise, among others, the US$3 billion commercial term loan facility between the Republic of Ghana and the China Development Bank.

It is elementary, yet fundamental, that every criminal allegation must be proved beyond all reasonable doubt to earn a conviction. This much is at the heart of developed theories of criminal justice in many cultures. However, England’s William Blackstone was quoted to have said, “better that ten guilty persons escape than that one innocent suffer”. Lord Sankey, of the English House of Lords, subsequently summarised the core postulation through his famous ‘Golden Thread’ speech that, “Throughout the web of the English Criminal Law, one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt…If at the end of the case, there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner,…..the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge and where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the Common Law of England and no attempt to whittle it down can be entertained” Woolmington v DPP (1935) AC 462.

LESS than 24 hours from today, on Saturday, April 16, Nigeria will hold its fourth presidential election since the Fourth Republic began and it is billed to be the most competitive so far. Not only that, in spite of faltering start, Nigeria’s 2011 general elections have been so far roundly hailed as relatively the most credible in the country since the world’s largest black nation returned to democracy 12 years ago. Ensuring the integrity of Nigeria’s elections is crucial to the future of democracy in Africa, especially coming in the year that some 19 presidential elections were on the cards. Laurent Gbagbo had to be arrested to involuntarily concede his obvious defeat, the people of two North African nations had to force out their ‘elected’ dictators. In the meantime, the battle to introduce multiparty democracy to Libya is raging violently without any clear indication which direction the missiles of resistance from both sides of the struggle may drop.

The Minority Leader in Parliament, Osei Kyei Mensah-Bonsu, has stated that strengthening Parliament’s financial oversight responsibilities is critical to combating corruption. He noted that “the evil enterprise of corruption which has become cancerous in Ghana”, explaining that Parliament has no option than to demonstrate extreme concern about the problems and threats that corruption poses to the stability and security of the country. He said corruption undermines state institutions and the values of democracy, as well as cultural and traditional values and the justice system. According to him these work against sustainable development and the rule of law.

Ghana Television (GTV) in this election period has chosen to ignore all other Presidential Candidates to become a propaganda mouthpiece for the ruling party. This must be highlighted and stopped now as the campaign heats up. With less than four months to the December 7 general elections, the presidency must not be exploited as a PR pretense to offer to offer unfair airtime to one party against all others. The public broadcaster should be conscious of its responsibility to offer fair coverage to all contenders. GTV, expectedly, has been following religiously the activities of our new President, H.E. John Dramani Mahama, bringing them to the living rooms of Ghanaians and it has been doing so by devoting an inordinately large chunk of its news coverage on every political activity of the President.