Six Supreme Court judges have not held a single plenary meeting since their judgement

Supreme Court judges (Photo: Courtesy)

Attention will momentarily shift from political campaigns this week as four Supreme Court judges who ruled in favour of nullifying results of the presidential elections make public their full judgment.

It has emerged that the four judges — Chief Justice David Maraga, his deputy Philomena Mwilu, Smokin Wanjala and Isaac Lenaola — who ruled that the results of the presidential results as declared by the Independence Electoral and Boundaries Commission (IEBC) were invalid have not met since that judgment was made.

The judges, who tilted the verdict by a majority of four against two dissenters, have been writing the judgment separately and have not agreed on whether to read the consolidated judgment in an open court or post it online.

“We have not met to decide whether to read the detailed judgment,” one of the judges told Sunday Standard.

Hiding

Justices Njoki Ndung’u and Jackton Ojwang, the dissenting judges, have also been writing their judgments separately, while the majority judges have assigned themselves areas to focus on.

None of the judges have left the country to write the judgment in a foreign country, a member of this bench told Sunday Standard. All the judges have been working from their homes and in their Supreme Court chambers, sometimes leaving their chambers at midnight, one of them said.

“None of us has left the country. Everyone is working at their own pace in the office and their houses,” said another judge. “We have been working even late at night and none of us has retreated into a hiding,” said the judge, dismissing claims by Nyeri MP Ngunjiri Wambugu who sought to have the CJ removed, claiming in his affidavit that Justice Maraga had left the country for Lithuania when the full judgment on the Raila Odinga v IEBC petition had not been released to the public.

Ngungiri stated his his petition that Maraga should be removed from the Supreme Court owing to his ties with NGOs that were sympathetic to the Opposition.

In his petition, the first-time MP sought to link these NGOs with NASA presidential candidate Raila Odinga, who had challenged IEBC’s result declaring that Uhuru Kenya of Jubilee Party had been re-elected after securing 8,203,290 votes against his rival’s 6,762,224 votes.

The judges have refused to be swayed by the pressure piled by political players, focusing instead on the task at hand. Often, it emerged, some arrive at their chambers at 6.30 am.

The judges now plan to meet early in the week to harmonise their majority decision.

Illegalities

“We will do it mid-week, Wednesday,” one of the judges told Sunday Standard.

In delivering their summary judgment on the presidential petition on September 1, the judges stated that IEBC failed, neglected or refused to conduct the Presidential Election in a manner consistent with the dictates of the Constitution and inter alia the Elections Act, Chapter 7 of the Laws of Kenya.

Political parties and other stakeholders have clutched at that statement in the ruling to demand the prosecution of IEBC officials.

Jubilee, NASA and civil society organisations say they have identified IEBC officials they want removed and possibly prosecuted even before the judges deliver their full ruling.

Observers say the pressure from political players could be aimed at persuading both majority and dissenting judges to take a certain position to suit their interests. For instance, Senate Majority Leader Kipchumba Murkomen has already faulted the Supreme Court for indicting the IEBC.

“We will be surprised if the ruling will indict a single person at the IEBC. NASA has said they will,” he said

However, senators James Orengo (Siaya) and Mutula Kilonzo Jnr (Makueni) insist that based on the indictment of the electoral agency, some of its officers should be held to account for the irregularities that led to the invalidation of the presidential results.

“Chebukati is a substantive chair who should have cracked the whip on the poll offenders. We hope the court will address this matter in its judgment," Kilonzo said.

“Those behind the mess at IEBC must be prosecuted,” Orengo added.

The Director of Public Prosecutions Keriako Tobiko had publicly stated that there will be no prosecutions until Supreme Court Judges deliver their full judgment.

Weighty issues

“In order for me to give clear, precise and specific directives to the Inspector General of Police or any such other criminal investigative agencies as may be appropriate, and so as to facilitate a holistic and comprehensive investigation, I am of the considered view that it would be proper to await delivery of the detailed and reasoned judgment of the Supreme Court,” Tobiko explained.

According to Mr Tobiko, the comprehensive judgment will contain details of irregularities and illegalities found to have been committed by the electoral body.

Among the weighty issues expected to be addressed by the judges is whether substance and form will carry the day over technicalities, whether the court will reverse its 2013 jurisprudence on threshold for nullification and on impact on technology failure.

Also anticipated is whether the majority judgment will be specific in assigning responsibility for the irregularities. The alternative, sources say, is to dwell on the irregularities in their generalities and leave the other accountability institutions to decide on who should face prosecution.

The judges should render the full judgement by September 21st.