How Supreme Court dealt blow to future petitions, democracy

Supreme court judges

Supreme Court judges (from left) Isaac Lenaola, Dr Smokin Wanjala, Philomena Mwilu, Martha Koome, Mohamed  Ibrahim, Njoki Ndung’u and William Ouko on January 20, 2022. 

Photo credit: File | Nation Media Group

I was stunned by the Supreme Court’s verdict on Raila Odinga’s presidential petition. It was not because the justices upheld the declaration by the Independent Electoral and Boundaries Commission (IEBC) that UDA candidate William Ruto was the winner of the presidential election.

After all, Kenya is alone among African democracies to have had three (and now four) consecutive election outcomes that were fiercely contested, but each time it ushered into the presidential office the person the electoral commission had certified. 

The reason for my shock was that the court had, during the hearing phase, seemed headed towards a considered and tempered judgement, whatever that might be. Justice Martha Koome had skilfully handled the complex proceedings, with authority and respect for the autonomy of the other six Justices, with all asking probing questions that most Kenyans also had. 

Possible charges

But, a weekend later, a spellbound nation witnessed a unanimous court categorically rejecting every critical complaint by the petitioners in the most aggressive way — not just disagreeing but debunking and even mocking the petitioners’ submissions. And warning about possible charges of criminality. 

As the Daily Nation reported, “The top court used strong language in dismissing the case. The judgement discredited the evidence presented by the petitioners as ‘hot air, outright forgeries, red herring, wild goose chase and unproven hypotheses’… All the 23 grounds listed in the 72-page petition filed by Mr Odinga and his running mate Martha Karua in the petition fell flat.”

Justices of the Supreme Court are some of Kenya’s most auspicious, learned and independent legal minds. It strains the imagination that of the extremely complex 63 legal decisions that had to be made (seven justices, nine issues), not a single one thought that the election was compromised. 

All grounds lost

Senior Counsel James Orengo, for the petitioner, said right after the judgement was read that he “vehemently disagreed” with the court’s decision: “It is unrealistic that we lost on all the grounds. The court was looking for things to destroy our case with, but not taking sufficient time to look at what happened on the other side.” 

No less disturbing were the warnings, made at considerable length, that the court directed at the petitioners and their highly learned counsels. To quote just a few small snippets:

“We must remind counsels who appear before this court…of the provisions of Sections 113 and 114 of Penal Code, that swearing to falsehoods is a criminal offence, as is presenting misleading or fabricated evidence…Any person who swears falsely or makes a false affirmation…would have amounted to perjury.”

All this is well-known. So, why was it spelt out at such length, and why seemingly directed at the petitioners’ corner only? 

For example, IEBC chairman Wafula Chebukati “published a gazette notice in which he designated himself as the presidential returning officer, a position unknown in law and the Constitution”, Justice Koome quoted. Did that not qualify for serious rebuke?

Such harsh rebukes of petitioners and counsels will make future petitions against IEBC’s presidential declarations a fraught affair. Indeed, it is possible that many of the current judges will again be assessing petitions against the IEBC’s presidential declaration in 2027 – if there are any – despite these warnings. And of course, repeated failures to have the initial “winner” unseated.

Despite upholding the IEBC verdict, the judgment pointed to profound IEBC weaknesses in conducting the election: “Clearly, the current dysfunctionality at the commission impugns the state of its corporate governance…The chairperson, on his part, did not make matters any better by maintaining a stoic silence even as things appeared to be falling apart.”

The court added: “All this, in our view, points to a serious malaise in the governance of an institution entrusted with one of the monumental tasks of midwifing our democracy; an institution that obviously needs far-reaching reforms.”

The postponement of the elections in Azimio la Umoja strongholds of Mombasa and Kakamega, they said, “was occasioned by a genuine mistake which could have been avoided had IEBC had been more diligent”.

These are damning findings, and yet the court decided that none of these failures affected the outcome? Can a dysfunctional IEBC suffering from serious malaise conduct a credible election? I do not think so. But by deciding that it was only the petitioners who had to prove their case, the court let IEBC off the hook.

This, surely, is not acceptable. The IEBC was budgeted an astronomical $385 million to conduct an election which would be fair and would shape our nation’s foreseeable destiny. 

Accessing servers

What we saw play out might have been tolerable with a decisive win but not in an election in which the declared winner exceeded the 50 per cent goal by a tiny margin. 

Mr Philip Murgor, representing Mr Odinga, pointed out that the servers contained all the secrets about what the election results were “but the Supreme Court registrar’s report was completely silent on the failure to open the IEBC servers. And the documented involvement of the Venezuelans for half a month before the election was set aside”.

 Since servers lie at the heart of the election outcome, how can the petitioners hope to win if they cannot receive full access? 

In 2017, we had the first example of our Supreme Court’s potential when it stunned the world by making Kenya the first-ever country in Africa to nullify the election of a president. The Koome court has reversed that gain.

Supreme Court petitions are a crucial determinant of our peace, diminishing tensions and passions by providing breathing room and hope for redress for the losing candidate’s passionate supporters. 

But those determined to win elections at all costs are prepared to risk the country burning. We must break this vicious cycle to keep Kenya peaceful. 

Mr Salim Lone is a former spokesman for the United Nations and for Kenya’s Prime Minister Raila Odinga (2008-2013)