By Susan Kendi
Outside the Supreme Court in Nairobi, temperatures hardly rose above 17 degrees Celsius but inside where the second presidential petition was in progress, it was a furnace of emotions.
Chief Justice David Maraga sat with Deputy Chief Justice Philomena Mwilu, on his right and Justice Jackton Ojwang on the left. Next to him was Justice Isaac Lenaola while Justice Smokin Wanjala sat to the DCJ’s right, and Justice Njoki Ndung’u after him.
Judges had earlier dismissed Caleb Wamaya’s application to be admitted as an interested party.
Although the court granted the application by Njonjo Mue and Khelef Khalifa’s advocates seeking orders for scrutiny of Forms 34A, 34B and 34C, the judges seemed quite irritated. The Independent Electoral and Boundaries Commission was ordered to supply a certified copy of the voter register to the petitioners at the cost of the latter. [Later, IEBC lawyers wrote to the petitioners saying the photocopying would require Sh80 million]. The other 18 requests were declined on grounds to be explained later, but which included impracticality of their implementation given the short time left for the determination of the petitions at hand.
Other requests were reportedly declined because they were not particularly cited in the petition or were “couched in such general terms as to be no more than fishing expeditions”, according to the judges. Below are excerpts of exchanges in court when the scrutiny was ordered.
CJ Maraga: Can we start?
Lawyer Harun Ndubi (for Mue/Khelef): Yes, my lord. Good morning. In regards to the directions you have given to our application for scrutiny we are requesting if the court can clarify a couple of things. One, that production and scrutiny can be overseen by the registrar of court; that we be granted leave to file a report of the findings of that scrutiny; and that specific timelines be provided for production of or the access to materials that have been granted so that we don’t lose time.
Lawyer Waweru Gatonye (for Chebukati/IEBC): Yesterday, My Lord, before or rather in the course of the argument you did ask where the documents are and we confirmed to the Court that [they] are within our warehouse in Nairobi. What I thought my learned friend ask for is access and we are perfectly willing to give that access. I don’t know why the court now should be involved.
Maraga: Mr Ndubi, send your representatives there and you have access to those documents, then you can a make a report of what you have seen and, Mr Gatonye, I think if he wants to take a copy or two of some of those forms. Please allow them. You do that so that if there is anything they want to print out of that, [you give] them access and if you can, avail a photocopying machine.
Gatonye: So long as they undertake to pay any photocopy, any certification.
(Laughter)
CJ Maraga: We already told them that they will get a certified copy of the register at their own cost because in your replying affidavit you said that it would cost millions [of shillings] to photocopy that. So Ndubi, it is up to you what part of the register you want to photocopy. It is up to you.
Ndubi: Very well. How about timelines, because it is essential perhaps we assume that the order is running we will send our people now.
Maraga: Mr Gatonye, please ask your people to avail enough staff so that this can be done and we get the report by tomorrow evening.
Gatonye: Most obliged.
Lawyer Fred Ngatia (for Uhuru Kenyatta): My lord. My two learned friends appear to leave us out. We are actually very important in that exercise. My lord, as I understand it, so that we do not leave here and generate other reports is access being given; in that access, I do not see another report being done because the report will be now evidence. We would want: one, to be present when that is going on. As a matter of fact, if Mr Gatonye could facilitate a recording of what is being done? Not that we impute improper motives but we are here to make sure everything is done correctly. So that we are not given one document, which mutates into something else. We would want to be present throughout that exercise and Mr Gatonye should have a big enough warehouse to enable all parties to be present.
Gatonye: We cannot allow a very large number of people, so perhaps my learned friend, Mr Ndubi, can give an indication of the number of persons he wishes to send.
Ndubi: Two things I would say, it would be meaningless to undertake that exercise as a result of this order from the court without the liberty to do a report to the court, whatever that report is. Two, if I recall the order in terms of how we couched it, all parties should be at liberty to participate. Thirdly, the number we will be requesting to participate is 10.
Maraga: Ten people?
Ndubi: Yes.
Ngatia: The difficulty we have with large number is the problem we had a month ago. Where our opponent crowded the venue and then reports started being generated. It is access to certain forms. We can have two people looking at Form 34A, two looking at 34B, and two looking at 34C. So that each team can have six people but having 10 then 10 and another 10 -- it is a big group.
Ndubi: My Lord...
CJ Maraga: Mr Ndubi, I guess that sounds reasonable.
Ndubi: My Lord, what I think is that first you recall that the Third Respondent opposed our application. They were not interested in this exercise we were asking for; they now seem to be particularly interested in it. I understand, of course, they would but like Paul Mwangi said yesterday, [they’re] breathing hot and cold.
CJ Maraga: Who is likely to be affected?
Ndubi: Whereas we appreciate that the Third Respondent has a direct stake in the outcome of the petition, we also know that all Kenyan voters and citizens have a direct stake, too. So that this matter cannot be taken as a dispute between individuals, it is a public issue that is being discussed. If he proposes six, four more is not unreasonable or disproportionate. My lord, we have a specific number. We are talking about 10 people. We are not asking for hundreds of people.
CJ Maraga: Fine. Gentlemen, the petitioners [will] have seven people, the third respondent to have seven people. IEBC to avail the number of staff they think would be required to facilitate the exercise. If you are noticing any issues it would help if both of you can agree and say this Form 34A appears altered and you record that, so that it is like consent.
Ndubi: Yes and if we have difficulties we will be at liberty to approach the Court. Thank you.
CJ Maraga: Very well. We will be happy if you can have that report tomorrow by the end of day
Ndubi: We were organising to send one of my colleagues here to organise the team.
Ngatia: I do not anticipate any report at all. It is an access being given if he wants to record anything that is personal report not a joint report.
Ndubi: Either we have a joint report if we disagree we do our respective reports because it doesn’t mean anything if we are going to conduct an exercise and the Court has no benefit of its outcome. It might as well been rejected then.
Gatonye: My Lord, I thought the order question by my learned friend was one for access -- that order has been granted. There is no order for furnishing the court with either a joint or individual reports. It is upon him after examining the documents, if he believes he should file anything in court, to file. He shouldn’t involve other people.
Ndubi: My lord, precisely the meaning of access is that we have asked for that scrutiny and access on account that we have to compare what we have and what has been presented to court and what they might be having. So it is important that the court has the benefit of the outcome of its orders. It is actually completely meaningless...
CJ Maraga (Interrupts): Mr Ndubi, please take a note of what you have seen. Mr Ngatia, it would be in, my view, that if they are especially pointing to something, it is good for you to say if it is correct or not.
Ngatia: But in the last sentence, I saw yet another danger. Now, instead of access it is a comparison of what he has and what IEBC has. My Lord, we are now expanding this into a very dangerous monster. My learned friend is not going to come to that hall with other documents to compare because we now get to see a way the documents can be exchanged. We are going without a single document what I say of him is what I say about my team. We go with no documents; we go to access with our eyes, cameras and with our everything. If he then wants to make an application he is entitled to do that.
Ndubi: My Lord …
DCJ Mwilu: I think we are really taking time away from hearing the petition. The order is clear, you have access: whatever you have to do with the access is your business. So just go get access, get whatever information you want out of there. Once you are out of the warehouse or whatever the place is called, do with it what you want. The order that has been granted to you is to access.
Ndubi: My Lady, what we did yesterday in our application to justify what you have granted was to demonstrate certain discrepancies. I appreciate, My Lady, when you say we can do what we want with the access, but it is also inappropriate and improper for Mr Gatonye’s client to limit us to say you can’t come with any piece of paper with which we can compare what they have.
DCJ Mwilu: Counsel …
Ndubi: Yes, My Lady …
DCJ Mwilu: Is there any part of the order you did not understand?
Ndubi: No, My Lady.
DCJ Mwilu: Thank you. You will define what you want to do when you come out of the warehouse or whatever you call it.
Ndubi: If we experience any difficulties, we will let the Court know.
