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Njeri Kimani in Nakuru
22 Sep 2017 00:00
Revoked: Judges of Kenya’s Supreme Court ruled that Kenya’s presidential election last month was marred by irregularities and its results were unverifiable (Baz Ratner, Reuters)
When he took the unprecedented step of nullifying Kenya’s August 8 election, Chief Justice David Maraga found himself in the crosshairs of an angry president.
Although this landmark ruling was widely hailed as a first for Africa and a major win for democracy, President Uhuru Kenyatta did not bother to hide his irritation. Kenyatta, who thought he had already secured his second term in office after winning the invalidated poll, was not pleased with the chief justice’s decision.
“I will teach them a lesson once the fresh presidential elections are over.
I will ‘fix’ the judiciary if re-elected,” said Kenyatta, not even bothering to veil the threat, in a speech delivered just two hours after news of the annulment broke.
In response, Maraga has expressed concerns that his life, and that of the other judges who heard the election case, were in danger.
“We will not be intimidated by anyone. We are ready to pay the ultimate price to protect the Constitution and the rule of law,” Maraga added.
But, as Kenya prepares for a second presidential election, which is meant to be held before October 31, the president’s rash remarks might just come back to bite him.
Kenyatta’s main rival for the presidency, Raila Odinga of the National Super Alliance (Nasa), wasted no time in getting in a few digs. “From his speech and body language one could clearly see he was very drunk,” said Odinga at a rally.
More important, from the president’s perspective, is that his attack on Maraga has not gone down too well with residents of Kisii, a large town in western Kenya where support in the last vote was split between the ruling party and the opposition. Maraga hails from Kisii, and locals have not taken kindly to the tarnishing of a local hero — and that might translate into lost votes for Kenyatta.
Exacerbating the situation, Jubilee MP Ngunjiri Wambugu filed a petition earlier this month demanding Maraga’s removal from office, prompting several days of angry demonstrations in Kisii and nearby Nyamira. Anti-Kenyatta posters were on display everywhere and protestors were dispersed by police using teargas. Twenty people were arrested and three have subsequently been charged with organising an illegal protest.
Initially, Kenyatta remained defiant. Explaining his post-verdict comments, he said he was “also human” and “very annoyed” by the decision. “Some of us were in a lot of pain. They stole my victory in broad daylight. At least they should have directed that the ballot papers be counted afresh. They steal from you during the day. Did they think I would break into laughter after the decision? You have to defend yourself,” he said.
But, concerned by the developing hostility in Kisii, he told Wambugu to withdraw his controversial petition. Kenyatta also invited 300 politicians from the area to a reception at State House in Nairobi, where he attempted to explain his position, saying that his problem was not with the citizens of Kisii but with Maraga himself.
Political analyst John Namaswa said the president’s reactions show just how nervous he is. “He has now realised that the results could be swayed towards any direction and anyone could clinch the seat if they use the right institutions set in place by the government.”
Namaswa added that Kenyatta’s ill-judged comments may have tainted his image. “He needs to learn to tame his anger,” he said.
Some good news for Kenyatta came on Wednesday, when the Supreme Court released its full judgment explaining why it had decided to annul the election. Kenyatta himself was absolved of any wrongdoing, but the Independent Electoral and Boundaries Commission (IEBC) came in for searing criticism.
The court rebuked officials for bungling the transmission of results and basing the outcome on dubious documents.
The full ruling detailing the court’s decision on September 1 to annul Kenyatta’s victory struck a devastating blow to the credibility of the election commission, casting doubt on its ability to organise a new poll in less than a month.
Deputy Chief Justice Philomena Mwilu described “disturbing, if not startling, revelations” about the conduct of the independent commission and singled it out for ignoring a Supreme Court order to open up its computer servers after allegations of hacking by the opposition.
The four judges who made the majority decision to annul the vote said the election commission had failed to verify the numbers before declaring Kenyatta the winner. Two judges also delivered dissenting judgments in the court session, which lasted over 10 hours.
Lawyers for the Nasa coalition last month challenged Kenyatta’s alleged rigging, hacking and tampering with results.
On the hacking charge, the election commission was excoriated for failing to provide evidence that could have cleared up some of Odinga’s claims, with Mwilu arguing that the burden of proof was on the IEBC.
“Our order of scrutiny was a golden opportunity for the IEBC to place before the court evidence to debunk the petitioner’s claim,” Mwilu read from the court’s detailed judgment.
“If IEBC had nothing to hide it would have readily provided access to ICT [information and communications technology] logs and servers to disprove the petitioner’s claim. But what did IEBC do with it? It contemptuously disobeyed the court orders in these very critical areas.”
Mwilu said the judges were left with no choice but to accept opposition claims that the election commission’s “ICT system was infiltrated and compromised and the data therein interfered with, or IEBC officials themselves interfered with the data, or it had bungled the transmission system and were unable to verify the data”.
But Maraga rejected Odinga’s calls to prosecute top election commission officials, saying there was no evidence to prove electoral offences.
“What we saw in evidence is systematic institutional problems and we were unable to find specific fingerprints of individuals who may have played a role in the commission of illegalities,” he said.
Maraga slammed “inexplicable irregularities that go to the very heart of electoral integrity”.
The judges also questioned how an election costing taxpayers 43-billion shillings ($416-million) could result in problems with transmission and “disturbing” questions over the security of forms — which were all meant to be printed by the same company.
“We find that the 2017 presidential election was neither transparent nor verifiable”, leading to the unprecedented decision to nullify the vote, said Mwilu. — With additional reporting by AFP
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