Revisiting historic nullification of presidential results one year later

Blind arrogance by the Independent Electoral and Boundaries Commission (IEBC) and contempt for the Supreme Court bench played a major part in convincing the judges to nullify the August 8, 2017 presidential election, according to a judge who was part of the bench.

The judge and another former Judiciary staff however said that as much as the nullification shocked the political elite, it has contributed to a lot of good things, though a lot of focus has only been on the threat to "revisit".

READ: Supreme Court quashes Uhuru Kenyatta's re-election

On August 11, 2017, IEBC declared the Jubilee candidate Uhuru Kenyatta duly elected president for a second term.

NO OPTION

But 21 days later on September 1, which was marked yesterday, the same commission was deflated and had no option but to start preparations for a fresh presidential election after the Supreme Court nullified the August 8 results.

According to the judge who requested anonymity to enable him freely discuss the September 1 historic ruling with the Sunday Nation, IEBC not only treated Nasa who were the petitioners with contempt but also the judges and the court.

“In the first petition, IEBC was arrogant and unprepared. They learnt their lesson and by the time of the second petition, they had humbled themselves and treated the court with some respect,” the judge said.

ANGRY BENCH

Though they did not show it during the public hearings, Sunday Nation learnt that majority of the judges on the bench were angry at IEBC for refusing to obey lawful court orders.

“The petitioners came before us with allegations. It was up to IEBC to disprove them. All we asked IEBC to give us was proof of results transmission and access logs. But they arrogantly told us that the people who were hosting the servers were still asleep. How would you want us to take this?” the judge said.

“If you refuse a court access to certain evidence, the presumption is that you are hiding something and the petitioner’s contention could just be right,” the judge added.

In the ruling of September 1, 2017, Chief Justice David Maraga his deputy Philomena Mwilu, Justices Smokin Wanjala and Isaac Lenaola delivered the majority decision nullifying President Kenyatta’s re-election over non-verifiability of the results.

ULTERIOR MOTIVES

Justices Jackton Ojwang’ and Njoki Ndung’u however delivered dissenting opinions upholding the presidential election results.

The majority decision laid blame on IEBC for having “failed or refused to conduct the presidential election in a manner consistent with the dictates of the Constitution thereby giving room for irregularities and illegalities to be committed that affected the integrity of the election. The decision caused a political storm with President Kenyatta accusing the Judiciary of being compromised.

“We shall revisit this thing. We clearly have a problem. Who even elected you? Were you? We have a problem and we must fix it,” President Kenyatta had said.

What followed was a constant attack on the institution and besmirching the characters of the judges, particular the four who nullified the election.

The coincidence that Deputy Chief Justice Mwilu was arrested and dragged to the courts last week, just days before the first anniversary of the nullification of the election last year has not escaped the attention of some people.

GOOD INTENTIONS

“We put it in the affidavit in our petition before the High Court that the Director of Public Prosecutions (DPP), Noordin Haji was being driven by ulterior motives. Justice Mwilu’s arrest was well planned to coincide with this first anniversary,” said lawyer Jackson Awele who is in the legal team representing the Justice Mwilu.

It is a concern also shared by other lawyers. “However good the intentions of the DPP on this matter may be, his actions will be viewed as political,” said lawyer Peter Wanyama.

The judge who spoke to us on his part said the Judiciary isn’t moved even with the revisiting.

STRONG MESSAGE

“We are law abiding citizens and that is why the Chief Justice has refused to comment on the matter and let the law take its course. But even if you arrested the entire group of the Supreme Court judges, it won’t affect the work of the Judiciary,” the source said.

The source also believes that the nullification sent a strong message to all, that the application of the rule of law is not affected by someone’s position.

It is a position that was also supported by a former Judiciary staff who said that even though the ruling tested the inter-branch relations in the government: “It revealed the full splendour of the Judiciary. This power is always in the Constitution but sometimes people think the provisions cannot be exercised.”

APPRECIATE LAW

However, the judge praised in particular President Kenyatta for accepting the ruling even if he did not agree with it.

“The court must give it to President Kenyatta for his ability to appreciate the rule of law. The only other African president to do so was the former South African President Nelson Mandela. President Kenyatta’s acceptance of our judgment is why he is being appreciated by the three most powerful nations in the world today, namely the US, UK and China.”

However, the judge says Nasa presidential flag bearer blundered by opting out of the fresh presidential election.