On September 1st 2017, the Supreme Court of Kenya gave its verdict on the petition filed by the NASA Coalition Presidential candidate, Mr Raila Odinga, disputing the declared results of the August 8th presidential elections.
The six judges, led by Chief Justice David Maraga, ruled by 4 votes to 2 that the elections were not properly conducted and that the declaration of Uhuru Kenyatta as the winner was invalid, null and void.
CJ Maraga noted in the summarised ruling that elections are a process, and not an event, and that the election process had been marred by irregularities and illegalities.
The court ruled that the IEBC “failed, neglected, or refused to conduct the presidential election in a manner consistent with the dictates of the Constitution” and applicable laws.
The court declared that the IEBC committed irregularities and illegalities in, among other things, the transmission of results.
The court also found that these irregularities and illegalities affected the integrity of the entire Presidential Election.
The court ordered the IEBC to conduct fresh elections in strict compliance with applicable laws, within 60 days as provided for in the Constitution.
The ruling shocked most of the country. This is the first time in Africa that a court has nullified the re-election of a sitting President.
Raila Odinga and NASA supporters were delighted.
President Kenyatta gave an official statement that though he disagreed with the ruling, he would respect it. However, speaking at various rallies afterwards, the President said that CJ Maraga and his ‘wakora’ (thugs or crooks) had nullified his re-election. He and other Jubilee supporters accused the Supreme Court judges of overturning the will of the people, of colluding with the NASA coalition and also of staging a judicial coup. The President and his Deputy – Mr William Ruto – said they would deal with the Judiciary and they would revisit the matter after the fresh elections. Jubilee repeatedly said that the Court should have ordered a recount of the ballots instead of calling for fresh elections.
Mr Odinga and the NASA coalition demanded that the IEBC, that the court stated had not conducted the elections properly, should be reconstituted before the new elections. NASA named specific officials that they said should be removed from the Commission. Jubilee responded that if the IEBC officials are removed, then the Supreme Court judges would be removed too (though this is not a simple process).
The IEBC Chairman, Mr Wafula Chebukati, invited the Director of Public Prosecution to investigate IEBC staff and prosecute those found to have possibly been engaged in wrongdoing.
On Thursday 14th September, newly-elected Nyeri Town Member of Parliament, Ngunjiri Wambugu filed a petition with the Judicial Service Commission seeking to remove Chief Justice David Maraga from office. Ngunjiri says that Maraga exercised a judicial coup by annulling the presidential election. He claimed that the CJ exerted undue pressure on the rest of the judges to make the judgement that they did.
The MP later withdrew the petition, saying that the political climate did not favour it. It was reported that President Kenyatta asked him to withdraw it.
On Monday 18th September, another petitioner – Mr Derrick Ngumu, who describes himself as the Executive Director of Angaza Empowerment Network, filed a petition seeking the removal of Deputy Chief Justice Philomena Mwilu and Justice Isaac Lenaola for alleged gross misconduct. The two judges are among the four who voted to nullify the presidential election.
Mr Ngumu accused the judges of breaching the Judicial Service Commission code of conduct during proceedings for NASA's presidential election petition, by meeting NASA leaders to discuss the case as it was going on.
On the whole, Jubilee supporters seem to feel that the Supreme Court was wrong to ‘overturn the will of the people’ and that the judges who voted for the annulment were compromised.
NASA supporters, on the other hand, believe that the Supreme Court vindicated their position that the poll was rigged.
It is noteworthy that during the hearing of the petition, the Supreme Court ordered the IEBC to allow the parties to the case and the court itself access to the server to examine its contents. IEBC complied only partially with this order of the court. This has solidified the view that the IEBC has some damning information within its servers that it is keen to hide.
After much talk by Jubilee leaders against the Supreme Court and it’s judges, the Chief Justice read a statement on behalf of the Judicial Service Commission, condemning the attacks on the Judiciary and stating that the Judiciary would not allow anyone to dictate to it how to discharge its mandate. He said “if leaders are tired of having a strong and independent judiciary, they should call a referendum and abolish it altogether.”
He called upon Kenyans of goodwill to stand up for the independence of the Judiciary and the rule of law. “On our part, we are prepared to pay the ultimate price to protect the Constitution and the rule of law.”