November 23rd 2017

Top Stories / 2017 Elections

Tensions rise in Kenya over repeat election; Chief Justice 'ready to die' for rule of law

"The JSC notes with dismay that the Inspector General of Police who is expected to provide security to all government facilities has repeatedly ignored calls to act, exposing judicial officers, property and litigants to danger."

By Free Press Reporternewsdesk@kenyafreepress.comTuesday, 19 Sep 2017 15:45 EAT

Chief Justice David Maraga and other Supreme Court judges during the hearing of the opposition petition in August.

Chief Justice David Maraga addressed a rare press conference this afternoon about the escalating threats to the rule of law in the country following the holding of an aggressive demonstration by pro-government supporters outside the Supreme Court Building. The demos were timed to create a perception of public disappointment with the court ahead of the judges' issuance of their full judgemental of the August 8 presidential election petition that annulled the re-election of President Uhuru Kenyatta.

The annulment of the Uhuru re-election caught the whole unawares and has triggered a chain of events including in domestic politics, internationally among Kenya's important western powers and even in the electoral commission, IEBC, that conducted the election, with its chairman Wafula Chebukati currently leading a one-man operation to get to the bottom of systematic violations of electoral laws ahead of a controversial repeat vote.

Opposition leader Raila Odinga, who filed the Supreme Court case, has issued a number of conditions for his participation in the repeat vote, among them the sacking of top officials of the commission which his party had accused of colluding with the government weeks before the election. Foreign election observers including a member of the European Parliament who led the EU observation mission in Kenya has supported calls for reforms in IEBC and the prosecution of officers who bungled the election.

However, the ruling party has strongly defended the IEBC officials and masterminded a campaign of attacks on the Supreme Court, with the president and his deputy William Ruto leading the charge. Both leaders have called the judges "crooks", remarks that have been widely condemned locally and abroad. The South African Chief Justice Mogoeng Mogoeng, who chairs a continental body of judicial officers, and former U.S. Secretary of State John Kerry who led the Carter Foundation's observation mission have weighed in with criticisms of the president's conduct.

"Since the Supreme Court delivered the judgment of 2017 presidential election petition on 1 September 2017, these attacks have become even more aggressive, culminating in lengthy and uninterrupted demonstrations right outside the Supreme Court Building yesterday and today," the CJ said after hordes of youths staged a protest at the Supreme Court Building.

"The JSC notes with dismay that the Inspector General of Police who is expected to provide security to all government facilities has repeatedly ignored calls to act, exposing judicial officers, property and litigants to danger."

“Individual judges, particularly of the Supreme Court, as well as other judicial officers and staff, have been attacked, threatened and negatively profiled on social media. Senior political leaders have also threatened the Judiciary promising ‘to cut it down to size’ and ‘teach us a lesson’,” he said, and firmly declared that he and other judicial officers were prepared to pay the ultimate price in defence of the rule of law. 

The Chief Justice, who is also the chairman of the JSC which controls operations of the Judiciary, condemned the escalating attacks on the courts which reached new heights today with the synchronized protest and a government-supported petition to JSC for the investigation of two Supreme Court judges, DCJ Philomena Mwilu and Justice Isaac Lenaola.

The petition, whose contents were reported in The Standard newspaper, claims the judges met with opposition lawyers ahead of the filing of the Raila Odinga petition at the Supreme Court which overturned the August 8 re-election of President Uhuru Kenyatta. The petition raised concerns both by the charges it laid on the judges and the way it was filed.

According to the the report by the Standard which has seen been removed from the newspaper's website, the petitioner, one Derick Malika Ngumu, says he is the executive director of Angaza Empowerment Network based in Mombasa. He provided as evidence alleged call logs detailing communication between Justices Mwilu and Lenaola with two lawyers who were representing the NASA coalition and Law Society of Kenya in the Raila petition, just a day before the case was filed.

In the legal and media fraternity, it was widely believed that the logs were fake. Obtaining call logs from mobile service providers can take up to a few weeks or even a month, and a court order is usually required even by law enforcement agencies. In some well-known cases, the firms have refused to release the information for investigative purposes. For example, during the investigation into the conduct of retired Supreme Court Justice Philip Tunoi, who was accused of receiving Sh200 million (USD 2 million) from former Nairobi governor Evans Kidero, Safaricom refused to produce the judge's phone records.

The question on many analysts' lips was a how a Mombasa-based NGO operative got the logs, and secondly how the Standard newspaper was able to do a front page article on the same within hours of the petition being filed.

Politically, Kenyans also wondered why the police looked the other way as protesters took charge at the Supreme Court, where they forcefully dispersed opposition protesters in weeks past, alleging the Supreme Court grounds to be a protected area. The demo happened at the same time with others in Uhuru's Central Kenya backyard. Muranga, Kiambu, Nyeri, Karatina, Naivasha, Kikuyu and Thika all reported demos.

Early in the evening, the main highway linking Nairobi to Raila's western Kenya stronghold was blocked by the demonstrators at Naivasha and several small towns on the road. A journalism lecturer and former Daily Nation editor Dr Julius Bosire, who was travelling from Nakuru to Nairobi, a journey that normally takes two hours, had been held in traffic for six hours. "Hooligans have taken over sections of this country," he wrote on a Facebook post that urged passengers not to use the road by night.

Pressure on the Judiciary has been rising as fears grow that the repeat election ordered by the Supreme could not be held at all and as political candidates at other levels of competition rushed to court in recent weeks seeking annulment of election of governors, senators and MPs around the country. “It is worrying that these protests are coming up at a time when the Judiciary is preparing to hear 339 cases filed across the country,” said CJ Maraga. 

Indeed, yesterday at the Kerugoya Law Courts, former Justice minister Martha Karua was attacked by demonstrators who sought to block her entry into the court for the hearing of the petition she filed against Uhuru ally Anne Waiguru, also a former cabinet minister, who was declared as having won the Kirinyaga governorship also contested by Karua.

According to newspaper reports, Karua and her lawyer Gitobu Imanyara were blocked from accessing the court, and by the time the police came to their rescue, the judge handling the appeal had dispensed with the case on account of petitioner's absence. But the file was later recalled after lawyer explained what had happened to them, and Justice Gitari sternly directed [Ms Waiguru's supporters] to let other court users access the facility during future hearings.

(Incidentally, in a direct signal of the confluence of grand corruption and threats to the judiciary, the journalist who wrote the Standard article accusing the Supreme Court judges of corruption, Mwaniki Munuhe, was himself investigated in 2015 for transacting tens of millions of shillings on Ms Waiguru's behalf as part of a campaign by the then powerful minister to pacify journalists over her connection to multi-billion scandals in the National Youth Service. The minister was forced by public pressure to resign, following which she joined politics as a top-ranking member of the President's Jubilee Party).

The stalemate over Raila's demand for the removal of IEBC officials who bungled the August 8 election has dimmed prospects that the election could be held at all. Away from these, the French company that supplied the election results transmission technologies and electronic devices for the election, OT-Morpho, has just recently informed the IEBC that it might not be ready for the repeat election by November 1.

As the fears have grown over the election, legal experts have differed sharply over whether Uhuru can continue holding officer after November 1. It is expected that the Supreme Court would be called again to arbitrate on the legal situation, hence the pressure on the judges by the government. The opposition would definitely call for other constitutional provisions to apply, such as the ascension to the presidency by the Speaker of the National Assembly, who is also a close Uhuru ally.

While the focus is on the four judges who upheld the petition and nullified Uhuru's re-election, the public has also got glimpse of the intrigues of the Supreme Court through an affidavit filed in a different court by former Chief Justice Willy Mutunga. Two judges who upheld the election - Justices Njoki Ndungu and Jacktone Ojwang - enjoy close relations with the President and have supported pro-government positions in previous cases.

While Justice Ndungu is a former politician (MP) and is from the president's tribe, Justice Ojwang had his wife appointed by Uhuru as a principal secretary (top-most executive post) in the Ministry of Education, immediately after the 2013 Supreme Court ruling in which the judge also upheld the president's election during another petition by Raila.

According to affidavits by former CJ Mutunga, Justices Ndungu and Ojwang' at one time orchestrated an illegal strike by themselves which they disguised as a strike by all Supreme Court judges so as to defeat the cause of justice in the case of Justice Tunoi. The former CJ says that Justice Ndungu "forged" minutes of the court which were later discovered by her colleagues to have been recorded for a minute that never took place.

Raila's political adviser Salim Lone said the petition to investigate Justices Mwilu and Lenaola reflected "a systematic, no holds barred attempt by Jubilee to thoroughly undermine the Supreme Court ​and hence the rule of law in Kenya."

He said, "It’s ​also totally irresponsible of the Standard to allow ​a terrible defamation of SC ​Justices Mili and Leanola ​to be published in absence of ​real evidence but using information provided by Intelligence. And of course, the attack did not come out of the blue - President Kenyatta had begun the attacks personally."

A Nairobi-based lawyer who spoke to this website said the widely-held perception that the failure of an election by November 1 would plunge the country into a constitutional crisis is exaggerated. "The constitution has clear operational requirements, and if there is any doubt the chain of succession is triggered.

"The only unprecedented situation we are in not contemplated by the constitution is that the entire infrastructure of the electoral commission would be designed to rig out a presidential contender as is the case now," said the lawyer.

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