Kenya Political Muddle: Making Sense of the Supreme Court’s Historical Choice to nullify the Presidential election

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Rivals: Uhuru and Odinga (R)

Opinion: On Friday, September 1st 2017, in a 4-2 majority decision, the Supreme Court of Kenya made history on the African Continent and globally when they nullified the Presidential Elections of 8th August 2017. The entire week, I had been following the court proceedings religiously and it was clear to me that the defense team were exhibiting the impunity of their bosses, of course expecting the usual ruling thus; ‘the irregularities did not sufficiently affect the outcome of the election’.

I will particularly single out renowned orator PLO Lumumba’s submission to court, which was largely devoid of substance, but lit up the court for its literary prowess. While Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu, Judges Smokin Wanjala and Isaac Lenaola thrust their names in history with the landmark ruling, it is Raila Amolo Odinga, his right hand man Senior Counsel James Aggrey Orengo and Counsel Paul Mwangi that are trending on social media and take the most credit in this victory.

Apart from making history, this ruling is a major turn in the democratization process of Kenya and the rest of Africa. The Supreme Court was caught between a rock and a hard place. In the heat of the moment at the Bomas of Kenya on 10th and 11th August, the Jubilee Party, the International Observers and the IEBC gloated that if NASA is not happy with the conduct of the elections, they should go to court.

In announcing their decision to go to court, NASA supremo Raila Odinga also challenged the Supreme Court to redeem itself. These unfortunate utterances by political players placed the court in a tight corner, but most importantly, the Supreme Court needed to complete the process of rebranding the Judiciary in Kenya. There was an urgent need for the Judiciary to come out of the shadows of the mighty Executive. President Kenyatta’s lawyer Ahmednassir accused the judges of making a political ruling, right in court, but I completely disagree with him for the reasons below

First and foremost, the Constitution of Kenya emphasizes that elections should be transparent, free, fair, credible and verifiable. These are characteristics that require both qualitative and quantitative approaches in determining if they existed in the conduct of any election. I take particular interest in the aspect of verifiability.

It was not rocket science for any person to see that the Court of Appeal decision in the Maina Kiai case implied that Presidential Elections ought to be called at the Constituency tallying centre. If this had happened, Kenyans and the rest of the World would have been verifying the results of the Presidential elections without any complaints. Each constituency would call the election and whichever way it went, it would be added in the column of the winner. IEBC REFUSED to adhere to such an obvious exercise for reasons best known to themselves.

The panel of Judges, four of whom made an historical ruling

In so doing, they deviated from the dictates of the Constitution and exhibited the highest level of impunity, which is only expected in failed democracies such as Uganda, Zimbabwe, DRC, Burundi, etc. The Constitution, being the supreme law of the land, cannot be ignored in the pursuit of political correctness or otherwise. Courts in other African countries ought to take note.

Secondly, President Kenyatta and his handlers underestimated the Supreme Court bench. For starters, Chief Justice Maraga has cut a reputation as a no-nonsense judge over the years. He is also on record for having issued a stinging critique of the 2013 Presidential Election petition ruling by the Supreme Court headed by his predecessor. Deputy Chief Justice Philomena Mwilu, Judges Smokin Wanjala, Isaac Lenaola are people with a history of activism and they have been involved in the struggle for Constitutionalism and democracy in Kenya. They are not the kind of souls you expect to act on the whims of the powers that be.

An activist will always be one, usually siding with the less privileged. These are the lenses that President Kenyatta and his team ought to have viewed the Supreme Court bench. This shallow understanding of the bench was manifested best by the submission of the Attorney General Githu Muigai who surprisingly sought to downplay the importance of the Constitution while submitting as a friend of the court (amicus curiae). During the interviews for Chief Justice, Judge Smokin Wanjala commented on the heat during the Presidential Election petition of 2013, which seemed to suggest that he regretted his decision and was a man ready to clear his conscience.

Thirdly, the blood of Christopher Msando was not in vain. That Msando was murdered together with a Kikuyu ‘girlfriend’ pointed to an attempt to conceal a politically instigated murder. Whoever murdered Msando wanted to do something fishy during the election. On August 9th, NASA tabled ‘server logs’ to prove that the Kenya Integrated Elections Management System (KIEMS) had been compromised on August 8th.

Many pedestrian thinkers attacked NASA instead by claiming that if NASA itself was not involved in hacking, how then, did they get the logs? What these pedestrian thinkers did not know is that NASA is not a bunch of fools. NASA strategists had created a dummy database named IEBC_Presidential_2017 using a different Database Management System (Microsoft SQL Server) as opposed to Oracle  Database Management System that is used by IEBC.

In issuing the logs, NASA had provoked IEBC to produce their own logs from the Oracle Database and prove that the system was not compromised. IEBC denied without producing the logs! This refusal by IEBC to come clean by releasing logs, cast a dark cloud on the integrity of the system. During the Petition proceedings at the Supreme Court, IEBC went ahead to defy an order of court to provide the server access logs.

Why were they refusing if they did not do anything wrong?? It is NASA that has the last laugh in all this. It did not require the judges to be ICT experts to make the conclusion since the NASA strategists had managed to reduce it to a case of basic logic. Even Jesus said that no body lights a candle and places it under the table. Why was IEBC not ready to seize the moment and remove all doubts on its transparency and the integrity of its systems??

Fourthly, Senior Counsel Senator Hon. James Aggrey Bob Orengo excelled in detaching his political personality from his legal personality when leading the petitioner’s legal team. Orengo and his team carried themselves well. First, they presented a 25,000 page petition which they said was a water-tight case with plenty of evidence. The large volume of petition papers was meant to psychologically prepare the Supreme Court and other parties to be cautious with the tired and expired phrase of ‘irregularities were not sufficient to alter the outcome of the election’.

Uhuru and his deputy Ruto never saw it coming

When the hearing started, keen observers noted the respect that Senior Counsel Orengo commanded from the bench and his learned friends on the other side. This respect was born out of the fact that Orengo’s contribution to the 2010 Constitution and reforms in Kenya is well documented. Orengo did not disappoint when making the case for the petitioner; he stressed the supremacy of the Constitution and prayed that the bench would uphold the provisions of the Constitution.

Credit should be given to Orengo for the calmness and composure he exhibited when arguing the case of the petitioner despite the fact that he had been heavily involved in the political campaigns and was the NASA Deputy Chief Agent at the BOMAS of Kenya.

Fifthly, had the Supreme Court ruled to uphold Kenyatta’s election, it would have potentially killed Presidential Election petitions and rendered the judiciary irrelevant in the political journey of Kenya. This would mean that Politicians would abandon the legal option when dealing with political questions. Politicians would resort to violence and this has the likely impact of eroding the little gains made over the last 30 years of the struggle for political pluralism, democracy and freedom in Kenya. Activist judges were very much aware of this and did not disappoint. Indeed, just like Dr. Stephen Kalonzo Musyoka stated, 1st September 2017 was a moment of pride for every Kenyan. In that single decision, the judges of the Supreme Court have redrawn the political trajectory of Kenya.

Sixthly, on 11th August 2017, the IEBC appears to have rushed the decision to declare a winner of the Presidential election just to avoid cornering its Adventist Chairman Ezra Chiloba into working on Sabbath. NASA had raised queries on the system and even offered to accept the verdict of IEBC if they had been given access to the server logs. IEBC disregarded NASA and the questions they raised and proceeded to make a declaration. The law allows the IEBC 7 days in which to tally results and declare a winner of the Presidential Elections. Why would IEBC not do everything possible to clear any doubts raised by NASA, even without Chiloba for just 24 hours??? Who was chasing IEBC to declare the winner on just the 4th day, when they still had an extra 3 days?

When all is said and done, the following are what I take out of the historic ruling of the Kenyan Supreme Court;

  1. Raila Odinga’s name and the struggle for freedom and democracy in Kenya will forever be inseparable
  2. Wafula Chebukati and Ezra Chiloba have joined the league of dishonorable men and women of Electoral Politics. These men include Badru Kiggundu, Samuel Kivuitu among others. Resignation is the only way they can redeem their images.
  3. James Orengo and his colleagues on the petitioners’ legal team will be much sought after on Constitutional issues.
  4. Uhuru Muigai Kenyatta and William Ruto need to do some soul searching.
  5. Kenya is likely to slide into a Constitutional crisis that might result in a coalition Government.
  6. David Maraga and his colleagues’ decision will form the basis of many lectures on Constitutionalism and Electoral politics globally.

Kenyans have not only been fast on the track and field as global athletic giants, they have also been fast in fighting their freedom and democracy, well ahead of other African countries. It really feels good to be Kenyan at the moment. Brothers and sisters in Kenya, go ahead and revel in this moment.

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