Hot air debate: There's nothing injudicious

Some litigants and lawyers are aggrieved by the language in the abridged judgment of the Supreme Court in the 2022 presidential election petitions. They contend that the Supreme Court unjustifiably or wrongfully used intemperate language incompatible with its hallowed status and constitutional mandate as a neutral arbiter of presidential election disputes. Relatedly, the disaffected litigants and lawyers contend that the Supreme Court's language betrays hostility, bias and prejudice against the petitioners. The grievances revolve around the description of the petitioners' cases as "hot air" and "wild goose chase" and strong criticism of the disaffected litigants and lawyers for presenting cases founded on blatant falsehoods, outright forgeries and distortion of facts.

In summary, this piece makes four broad rejoinders to the attacks against the Supreme Court. First, there is nothing intemperate or injudicious, as a matter of diction and judicial practice, about the language the Supreme Court used against the disaffected litigants and lawyers. Secondly, the Supreme Court was entitled, as a matter of law and judicial practice, to not only use the language it used but also impose severe sanctions against the disaffected litigants and lawyers. In other words, the disaffected litigants and lawyers should be grateful that they only received tongue-lashing in a case whose facts and circumstances justified the imposition of severe legal sanctions from the Supreme Court (and, for the lawyers, additional professional disciplinary sanctions from the Lawyers Disciplinary Tribunal). Lastly, the language that the Supreme Court used compares very favourably to the more robust language used by other Kenyan and Commonwealth courts against litigants and lawyers who fail to abide by the rules of fair play that apply to all judicial proceedings.

The starting point in assessing the propriety of the Supreme Court's language lies in the conduct of the disaffected litigants and lawyers. To begin with, the petitioners made spurious allegations of "staging" and "dumping," thoughtlessly 'copy-pasted' from President Donald Trump's legal challenge against the 2020 US presidential election. The Supreme Court engaged in highly tedious exercises to probe the veracity of these allegations. Specifically, the Supreme Court engaged in the scrutiny of IEBC servers and ICT systems, scrutiny of election materials and recount of ballots in several polling stations spread across four counties. The scrutiny and recount exercises entailed enormous logistical mobilisation of human and other resources.

As the scrutiny and recount exercises proceeded, one of the petitioners' lawyers took the Court through a purported "live demonstration" of the alleged "man in the middle," a Venezuelan citizen by the name "Jose Camargo," to prove "staging and dumping." The so-called "live demonstration" turned out to be no more than a dishonest attempt to misrepresent an obvious fact, which the petitioners' lawyer knew or ought to have known, that the Form 34A in question had been scanned on top of a document that bore the name "Jose Camargo."

A senior lawyer representing the petitioners, who also knew or ought to have known that some election materials were packaged in envelopes labelled "Jose Camargo" and that his junior colleague was deliberately misleading the court, claimed that the so-called "live demonstration" was evidence that the 2022 presidential election was conducted in Venezuela. The scrutiny report then came out. It did not reveal or suggest even a whiff of foul play on the part of the IEBC or any other party, but this did not stop some of the petitioners' lawyers from attempting to misrepresent the contents of the report.

Tedious ordeal

The description of the petitioners' cases as "hot air" and of the tedious ordeal of scrutiny and recount as a "wild goose chase" should be seen in the context of the petitioners' spurious allegations of "staging" and dumping." The Oxford Advanced Learners Dictionary ("the Oxford Dictionary") defines the phrase "hot air" as "claims, promises or statements that sound impressive but have no real meaning or truth." The scrutiny report confirmed that the petitioners' allegations were hot air. The Oxford Dictionary also defines the phrase "wild goose chase" as "a search for something that is impossible for you to find or that does not exist, that makes you waste a lot of time." Again, the scrutiny report confirmed that the petitioners had engaged the Supreme Court in a wild goose chase.

One of the petitioners' witnesses presented a forged document, which he attempted to pass off as a printout of logs of foreign infiltration of the IEBC server by foreigners and agents of the winning candidate. It turned out that the witness had edited the logs presented in the 2017 presidential election petition (but forgotten to edit the dates in one of the logs). The same witness presented fake evidence, including a video and a transcript of a conversation of an undisclosed man demonstrating to him how the winning candidate had employed various persons to intercept and change the results for governor elections on the IEBC public portal, never mind the fact that no such results were posted on the portal. A rational person would have expected the petitioners to apologise or even withdraw the case after the exposure of this fraud. Instead of apologising to the court or withdrawing the case, the witness purported to change his evidence by filing an evasive affidavit.

Two of the petitioners' lawyers filed affidavits to which they attached documents they claimed were copies of Forms 34A that the petitioners' agents received at various polling stations. The thrust of the affidavits was that the IEBC had altered Forms 34A by deducting votes from one of the petitioners and adding them to the winning candidate. There were countless fundamental problems with the affidavits and the copies of forms 34A attached to them.

Firstly, lawyers are officers of the court and thus are legally obliged to refrain from conduct that subverts the administration of justice (see section 55 of the Advocates Act). Secondly, lawyers are professionally trained and legally required to refrain from swearing affidavits on behalf of their clients in litigious matters. Thirdly, the scrutiny and recount dispelled the allegations of electoral fraud set out in the affidavits that the two lawyers swore. Fourthly, the scrutiny and recount revealed that the documents attached to the two lawyers' affidavits were outright forgeries. Fifthly, the petitioners' agents disowned the forms 34A attached to the two lawyers' affidavits, yet the lawyers claimed they had obtained the forms 34A from the same agents. Sixthly, presiding officers of the relevant polling stations disowned forms 34A attached to the lawyers' affidavits.

Perjury

In short, it turned out the lawyers had either forged or presented forged forms 34A that they knew or ought to have known did not originate from IEBC. The presentation of forged documents by the two lawyers amounted to professional misconduct and, specifically, "disgraceful or dishonourable conduct incompatible with the status of an advocate" within section 60 of the Advocates Act. The presentation of forged documents by the two lawyers also amounted to perjury. The conduct of the two lawyers also amounted to various criminal offences under the Penal Code and other laws that govern the administration of justice.

In the circumstances, the Supreme Court was entitled to use strong language and impose sanctions against the two lawyers. To illustrate, the Supreme Court could have found the two lawyers guilty of contempt of court or asked them to show cause why they should not be convicted of perjury and other offences against the administration of justice. The Supreme Court could also have referred the conduct of the two lawyers to the Advocates Disciplinary Tribunal for appropriate action. In short, the Supreme Court could have taken drastic action against the lawyers, but it is being faulted for merely using 'strong' language against them.

Two petitioners' witnesses, who claimed to be handwriting or forensic experts, presented reports supporting the affidavits sworn by the two lawyers. They claimed they had examined the fake forms 34A and found most of them to have been written by the same person. But there was a problem with their forensic reports. They had not examined the alleged copies of forms 34A against the originals. Handwriting and forensic experts do not usually express an opinion on a copy of a document before seeing the original. In short, the petitioners' handwriting and forensic experts were complicit in a scheme to pervert the administration of justice.

Given the context of the abovementioned matters, the Supreme Court was perfectly entitled to adopt the language and tone it adopted against the disaffected litigants and lawyers. Indeed, the Supreme Court's language and tone are very polite in the circumstances. Moreover, the disaffected litigants and lawyers should be grateful that the Supreme Court did not take the more drastic options available in the circumstances.

Disclaimer: The writer acted for one of the parties in the dispute and thus there is a real likelihood that his perception of the issue at hand is blinkered by that fact.