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How the Supreme Court failed in the 2013 Presidential Petition

18 April 2019 - 12:04

Third excerpt from 60 Days of Independence: Kenya’s judiciary through three presidential election petitions

Read first excerpt here: https://tinyurl.com/y23j8cpc
Read second excerpt here: https://tinyurl.com/y6tktwzb

Kenya’s first Supreme Court was cobbled together from the old judiciary, academia, and civil society: It was instructive that the Court of Appeal contributed only one judge to the new apex court that would topple it in the judicial hierarchy. It was a clean break from the insularity of the Court of Appeal, its arrogance and slavish loyalty to rules.

Until 2013, presidential election petitions in Kenya had never got off the ground. Petitions challenging the election of the president in the 1992 and 1997 contests did not go beyond the preliminary stage and were dismissed on technicalities at the Court of Appeal – which was the highest court at that time. The requirements on the petitioners, such as personally serving a sitting president with court papers, were so onerous as to make litigation moot. Opposition politicians refused to take the dispute over the 2007 presidential election to the courts, arguing that their opponent controlled the judiciary, and thus fomented a 60-day violent crisis only ended through international mediation that brokered a coalition government.

This history was part of the case establishing the Supreme Court as a special forum to hear and determine presidential election petitions, which had to be decided within 14 days of the announcement of the result. A president-elect could only be sworn in office if there was no court challenge. This constitutional design of the Supreme Court being the forum to settle presidential election disputes was in the September 2002 draft prepared by the Constitution of Kenya Review Commission. This draft was the basis of successive proposed constitutions culminating in Kenya adopting a new constitution in 2010.

Although the first Supreme Court was considered difficult to read in terms of how it would rule in presidential election petitions, a series of micro-aggressions were launched to stimulate behaviour that certain political actors desired.On the surface, the court seemed to have the right mix of insider experience and outsider mavericks. More significantly, the court was a subconscious assembly of the country’s Big Five – the largest ethnic groups: Kamba, Kalenjin, Luo, Luyia, and Kikuyu were represented.

This ethnic mix presented an optics challenge for the new Chief Justice, who was anxious that coming out of a post-election ethnic conflagration, the court might be similarly divided along ethnic formations. At the helm as Chief Justice and Supreme Court President was Dr Willy Mutunga, who had taught law at the university, been detained as a political prisoner, pioneered the establishment of Kenya’s vibrant civil society movement, and been part of the push for a new constitution. He had been in charge of the East Africa regional office of the Ford Foundation. After the return of multi-partyism in Kenya in 1991, he became one of the public faces demanding constitutional change.

In early 2002, he successfully mediated between opposition leaders Mwai Kibaki, Charity Ngilu and Michael Kijana Wamalwa to form a political alliance and support a single candidate for the presidency in the 2002 elections. When Kibaki was elected President and appointed him to the council of Jomo Kenyatta University of Agriculture and Technology, Dr Mutunga declined the position saying the institution specialized in fields of study he had limited knowledge of. As Chief Justice, Dr Mutunga spoke often about his desire to have a united court – whatever the decision– even though he wrote the lone dissent in the advisory opinion on when to implement the two-thirds gender representation rule in elective offices in December 2012.

Although each of the Supreme Court judges had been through public interviews and those already serving on the bench had additionally been vetted for suitability to continue serving, there were questions about whether they were up to the task of adjudicating a political dispute purely on the basis of evidence and facts. Only three judges had judicial experience. The other three were drawn from academia and civil society.

The Supreme Court is composed of seven judges but by the time of the 2013 presidential election petition, one judge had been removed from office. Deputy Chief Justice, Nancy Makokha Baraza, who left office after only six months,following a public furore over her altercation with a female security guard performing checks at a Nairobi shopping mall. A tribunal found Baraza unsuitable to serve on Kenya's apex court and although she appealed the decision at the Supreme Court, it was not heard because she later withdrew it. Her vacancy would not be filled until after the petition had been decided.

Dr Mutunga had had no role in interviewing or selecting any of the first Supreme Court justices. He and Deputy Chief Justice Baraza were awaiting parliamentary vetting and approval at the time. The JSC thus gazetted the names of five judges without his input. A court challenge seeking to make the Supreme Court conform to the principle that no institution should have more than two thirds of one gender failed.
The other judges who would make up the bench for the 2013 presidential election petition were Justices Philip Kiptoo Tunoi; Jackton Boma Ojwang; Mohamed Khadar Ibrahim; Smokin Charles Wanjala; and Njoki Susanna Ndungu. By pure chance, they had all been Dr Mutunga’s students at the University of Nairobi.

Justice Tunoi was the most seasoned of them all, having served for 24 years in the High Court and Court of Appeal before donning the emerald robes of the Supreme Court in 2011. During his tenure on the Court of Appeal in 2001, Justice Richard Kwach had publicly questioned his integrity and that of Justice AB Shah after he changed his mind on an agreed judgment. The three judges later publicly reconciled after then Chief Justice Bernard Chunga called them in for a meeting.

Remarkably, the Judges and Magistrates Vetting Board found him suitable to continue serving in 2012 without providing further explanation. At the tail end of his service, the judge was embroiled in a $2 million bribery scandal. The tribunal appointed to investigate his conduct did not conclude its work in part because Tunoi ceased to be a judge on account of reaching the retirement age. . Still, no criminal investigations were started in respect to the allegations of bribery despite the possibility they held for revealing the truth about a libel case filed by six Supreme Court judges protesting against a newspaper story that insinuated that a governor had provided Sh49 million -- a sum easily divisible by the number of judges on the court -- to be shared out among them for a favourable election petition appeal.

An ultra-conservative law professor, Judge Ojwang had taught for 27 years at the university before his appointment to the High Court. One of his more curious scholarship positions was the focus on charisma as a source of extra-constitutional power. His former university law student, Ndungu, also joined the court as the youngest judge after serving as a high profile nominated Member of Parliament who was also credited with crafting the deal that merged opposition parties ahead of their 2002 election victory. She had sponsored and shepherded the signature Sexual Offences Act through Parliament and was a member of the Committee of Experts that harmonised proposals to produce the Constitution of Kenya, 2010.

Justice Ibrahim was a former political prisoner who topped his law school class for three years running, and was highly regarded for his sound judgments and integrity but was severely damaged by the Judges and Magistrates Vetting Board’s decision finding him unsuitable to continue serving for delaying the delivery of 264 judgments. He spent the better part of 2012 battling to retain his job through appeals and reviews.
Although Justice Ojwang faced similar issues because of health challenges, he completed his backlog of cases and was declared fit to continue serving. The vetting board failed to clear Justice Ibrahim twice because of delays in his judgments before finally clearing him.Dr Wanjala had also taught law at the University of Nairobi for 15 years, co-founded a civil society organisation to fight graft, and resigned as one of the assistant directors at the Kenya Anti-Corruption Authority before being appointed a judge.

In the lead up to the 2013 presidential election petition Dr Mutunga’s stint as a political prisoner and history as a pro-democracy activist fed fears that he would be in the tank for Prime Minister Raila Odinga, who was also a former political prisoner and was contesting the presidency a third time. Justice Ibrahim, though similarly a former political detainee, was believed to owe debts from the long, drawn-out vetting uncertainty. The smart money was on Justice Wanjala’s stint in activism putting him in the same corner with Dr Mutunga and Justice Ibrahim.

Yet, ahead of the 2013 presidential election petition, the Supreme Court had cultivated a character of dodging legal bullets. Its excessive caution was sometimes seen as bordering on cowardice: for example, when the Independent Electoral and Boundaries Commission (IEBC) sought an advisory opinion on the election date under the new Constitution, the Supreme Court kicked the can down the road, and sent the matter to the High Court. In the end, the High Court decided the matter, a decision that was subsequently affirmed by a five-judge bench of the Court of Appeal by a majority of four to one.

The Supreme Court’s aloofness discouraged litigants from approaching it to settle the question of Uhuru Kenyatta and William Ruto’s eligibility to contest the 2013 elections given their crimes against humanity cases at the International Criminal Court. “Any question on the qualification or disqualification of a person who has been duly nominated to run for president can only be dealt [with] by the Supreme Court,” said Judge Helen Omondi, reading out the decision of a five-judge High Court bench, 17 days to the March 4, 2013, General Election. To date, the Supreme Court has not made any determination on the leadership and integrity standards a candidate for president should satisfy to be allowed to contest.

By the time the 2013 presidential election petition arrived at the Supreme Court, police were dispersing the petitioners’ supporters with teargas. Until then, the court had made many right administrative decisions.
Six senior jurists from the Commonwealth Judges Association were on hand to watch the hearing. Once the petition was filed the court opened up the proceedings to live broadcasting and web streaming on its website, with 157 law schools following the feed. The pre-trial conferencing, an innovation of the new Supreme Court, was fascinating, giving the public a rare inside view of how the wheels of justice turn.
The judges declined an audit of the IEBC’s Information and Communication Technology (ICT) system, saying that the petitioners had not indicated who should conduct it, and expressing fear that the exercise could spill beyond the constitutional deadline for determining the petition.

Remarkably, the Carter Center, in a report after the election put the failure of the ICT system at 41 per cent of all biometric identification kits.
Another application sought leave for Odinga’s lawyers to formally file an 839-page bundle of affidavits and other evidence — necessitated by what the IEBC filed in response to the petition. The court ordered the material expunged from the record since the Constitution imposed a deadline on them.

Civil society activists Gladwell Otieno and Zahid Rajan filed a separate petition seeking to argue that IEBC did not maintain a constant voter register, with the result that the number of people who voted was higher than those who were registered. The petitioners claimed that it was unclear which register was used to confirm the identities of voters at polling stations across Kenya.
A third set of petitioners, Moses Kiarie Kuria, Dennis Njue Itumbi and Florence Jematia Sergon filed their petition before the March 16, 2013 deadline seeking a declaration that spoilt votes should not be considered when computing valid votes cast.

The court, on its own motion, ordered the scrutiny of all votes cast in all the 33,400 polling stations to gain insight into whether the winning candidate had indeed met the threshold of garnering a majority of all votes cast. But it soon became clear that notwithstanding the availability and use of nearly 50 legal researchers, the court was woefully unprepared to manage the scrutiny or to understand how the Sh10 billion ICT infrastructure had helped or undermined the election.

It also ordered the re-tallying at 22 polling stations cited by the petitioners as being problematic, a decision that the respondents’ lawyers were not too happy with. Dr Mutunga and Dr Wanjala were convinced that a scrutiny would provide a snapshot of the election. The Supreme Court’s lack of experience in managing an election scrutiny would prove to be its undoing as it ceded control to the court administrators who actively sabotaged it through administrative delays and systems failure.

Although the team completed the scrutiny, they misled the judges that they had only examined 18,000 polling stations and the data were inconclusive.
The court released the results of the tallying exercise on Friday, March 29, 2013, and all lawyers were allowed to comment on them. Kethi Kilonzo, who represented Gladwell Otieno and Zahid Rajan, said the fact that the report found some forms missing from some polling stations was a serious omission.

“This report confirms that the returning officer of the presidential election made a declaration without completing the tally from all the polling stations,” she said.
Without acknowledging that the scrutiny it ordered was only half done and inconclusive, the court upheld the election for lack of evidence of rigging.The decision provoked brutal criticism, including open accusations of bribery. Dr Mutunga was forced to publish an agonised post on Facebook asking that if anyone knew of judges being bribed, she or he should come forward with the evidence.
Long before it gave its final decision, the manner in which the court had handled a number of applications made during the hearing had already foretold the decision that the court would make. The essence of the court’s procedural unfairness has been addressed many times over.

When the final decision, including reasons, was published 16 days later, it still had errors and had to be reissued twice with corrections. The final judgment was brief on matters such as the failure of the polling kits (worth only seven paragraphs) while lengthy on far less important ones such why rejected votes should not be considered in the final tally (27 paragraphs).
Although there were recriminations about the inadequate preparations by advocates for the petitioners, who declined offers of help at the time from the United States, the Supreme Court came for severe criticism for its proceduralist reading of the rules and could have influenced its approach in 2017.

In their book on the 2013 General Election, New Constitution Same Old Challenges, James Gondi and Iqbal Basant point out that public confidence in the Supreme Court declined after the decision, which was roundly criticised in academic and legal circles. A Judiciary Perception Survey in 2015 found that the approval rating of the judiciary plummeted from a stratospheric 78 per cent to just under 50 per cent in the year after the ruling.

Download 60 Days of Independence Here: https://icj-kenya.org/e-library/publications/send/3-publications/257-60-...

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