Excerpt from 60 Days of Independence: Kenya’s judiciary through three presidential election petitions
Chief Justice David Kenani Maraga cut a lonely figure on the morning of October 25, 2017, as he sat in Court No. 4 at the Supreme Court building. It was the eve of the repeat presidential election ordered by the Supreme Court after nullifying the results of the August 8, 2017 vote.
That fresh election would have to occur within 60 days of nullifying the results of the previous one as provided for in the Constitution. After October 30 when the 60 days elapsed, the country would enter uncharted territory if the election was not held.
A day earlier, the Cabinet Secretary for Interior and Coordination of National Government, Dr Fred Matiang’i, had suddenly declared October 25, 2017, a public holiday to allow people to travel to their voting areas. The Chief Justice had already set October 25 as the hearing date for Petition 17 seeking to postpone the repeat presidential election, and he was not walking back on that. The public holiday created another problem. There were judgments scheduled for delivery in the High Court – especially one a petition questioning the legality of gazetting returning officers for the repeat election.
The Chief Justice not only gave special dispensation for the courts to sit on the new public holiday but also decreed that the Supreme Court would hear Petition 17 seeking to postpone the fresh election.
Outside the courthouse on Nairobi’s Wabera Street, the sun glinted off anti-riot trucks blockading the entrance to the Supreme Court and police in combat gear waiting inside for a confrontation.
Chief Justice Maraga began to speak slowly, explaining that other than himself, Justice Isaac Lenaola was the only other Supreme Court judge in the building. One judge could not be accounted for and another could not find a flight back to Nairobi. Justice Mohamed Ibrahim who had been taken ill during the August hearings was back in hospital. The Supreme Court was unable to raise the quorum of five judges to hear the matter, even though it was listed for hearing before the seven justices.
The night before, two gunmen on a motorcycle had stopped next to Deputy Chief Justice Philomena Mwilu’s official car. One man peered inside and saw the passenger seat was empty. He then walked round to the police driver in the car who had just picked up a bouquet of flowers for the DCJ and began shooting. The florist nearby claimed the gunman’s accomplice had urged him to kill the police driver after the first shot, which was followed by two more.
The Chief Justice looked tired as he spoke in court on October 25, 2017. He and his deputy had been at the hospital by the police driver’s bed until 1.30 am. The 37-page petition seeking to postpone the fresh election was still unread.
The shooting denied the court time to prepare for the hearing. The petition by Khelef Khalifa, Samwel Mohochi and Gacheke Gachihi had been filed the previous afternoon, on October 24, 2017, when the petitioners were ordered to serve the other parties. Although no formal investigation has been conducted into why the court could not raise quorum on October 25, 2017, it has been claimed that some of the judges received threats that prevented them from spending the night in their homes. Kenya’s excitable social media scene was rife with unverified rumours on the whereabouts of judges.
The shooting incident occurred at the end of a dramatic day that had seen the Internal Security minister declare October 25 a public holiday, but still, the Chief Justice allowed Justice George Odunga to read his judgment in the case challenging the legality of how returning officers had been appointed. Judge Odunga’s judgment declared that the gazettement of the returning officers was illegal but held the effect of his judgment in abeyance, meaning that it would not affect the following day’s repeat election. Still, the Attorney General managed to appeal the judgment on the same day and obtain orders.
Even though the Supreme Court had been unable to quorate in the morning, the President of the Court of Appeal assembled a three-judge bench after official hours on a public holiday to receive the appeal, hear it and issue orders. Lawyer Apollo Mboya filed a petition with the Judicial Service Commission seeking to establish if the conduct of the judges had been above reproach. It is one of 12 petitions against judges at the JSC.
After Raila Odinga withdrew his candidature from the repeat election, a petition was filed in court seeking orders to start the process anew. The petition flowed from the 2013 Supreme Court judgment in which the judges had opined that the death or withdrawal of a candidate after the nullification of a presidential election would reset the calendar and trigger a new electoral cycle. Although this was not an issue any of the petitioners had raised in 2013, the Supreme Court had offered its opinion at the urging of Attorney General Githu Muigai, who had been admitted to the case as amicus curiae (friend of the court).
The state had made it clear that the October 26, 2017 repeat election would go ahead as planned. The Independent Electoral and Boundaries Commission (IEBC) was trundling along, trying to scrape together an election after the Supreme Court’s rebuke, and the security services were on high alert for any disruptions on account of the opposition’s call for boycotts.
Beneath the bluster, there was a great deal of restlessness – especially within the international community, most of whose representatives in Kenya had burnt their fingers by casting their lot with observer missions that gave the August 8 election a clean bill of health. Anxious not to have their noses bloodied a second time, they spent considerable effort trying to obtain a reading of the Supreme Court in terms of whether or not it was minded to stop the repeat election. United States ambassador to Kenya Robert Godec paid a courtesy call on the Chief Justice in an effort to get a reading of what would come.
Even the usually reticent Chief of Defence Forces, Samson Mwathethe, came forward four days to polling to say that the country would have an election on October 26 despite that very question still pending before the court. Remarkably, the military had been mentioned adversely in the 2013 election in connection with the deployment of 150,000 troops to ‘maintain peace’ or suppress protests against electoral fraud. In the run-up to the August 8, 2017 elections, the opposition National Super Alliance (NASA) released documents detailing military plans to cut off water supply and transport voting materials. Although the official military spokesperson confirmed the authenticity of the documents, he claimed that they had been quoted out of context. Against this backdrop, Mwathethe’s statement and the police unresponsiveness to the judges’ concerns about personal security signalled the likely sinister involvement of the security services in the country’s elections. Matters were not helped by the failure to conclusively investigate the targeting of Justice Mwilu’s bodyguard.
Another question about the repeat election confronted the Chief Justice: to vote or not to vote. One candidate had withdrawn; another candidate had pushed on regardless.
Sitting out the vote could be disastrous. It could tip public perception of the Chief Justice’s leanings and open up a new front for his detractors to attack him. If he voted, it might seem like fidelity to the majority decision to have the election done over. How do you call for an election then sit it out? It seemed like the easier option.
Social media meanwhile was awash with scenarios of how the Chief Justice was trying to foment a political crisis in the hopes of ascending to the presidency. One influential blogger painted an apocalyptic scenario, which started with a nullified election and ended with a judicial coup with Maraga as caretaker president. The YouTube video had been viewed more than 100,000 times a few weeks after its publication.
On October 26, 2017, at 1.55 pm, the Chief Justice, accompanied by his wife Yucabeth Nyaboke, was in his rural constituency at Bosose polling station in West Mugirango – 304 kilometres from the Supreme Court in Nairobi and two hours’ drive from Kisumu Airport – to cast his vote in the repeat election.
Although the public took note of the judges’ absence on October 25, the Judicial Service Commission, which is responsible for protecting the independence and promoting the accountability of the judiciary, has not taken any action to help the judges to explain themselves. Given the stream of threats directed at the judges, the public was largely sympathetic to their circumstances and created a blind spot that allowed for threats to be successfully employed, or for those judges who might have absconded duty to do so.
Anti-corruption crusader John Githongo, who leads the civil society organisation, Inuka Kenya, wrote to the Chief Justice seeking an explanation. “I don’t think they understood why we were doing it back then but now the knives are out for them,” he says.
Although there may be good reasons for the judges’ absence, they have not been made available to the public. The risk remains that voluntary or enforced absence from court to frustrate quorum could become an institutionalised practice.
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