Kenya’s Supreme Court has finally come of age. It took trial by ordeal to get there — but Kenyans and the whole world know without nary a doubt that the rule of law is alive and well in Nairobi. The judicial earthquake first struck the Jubilee regime on September 1 when the Supreme Court delivered in precis its ruling nullifying the August 8 presidential poll.
On September 20 the Supreme Court in its full ruling delivered a jurist’s knockout to election rigging in Kenya. I know that lawyers for the IEBC and Jubilee are now punch-drunk. Ignore their bloviation. Fact — the Supreme Court’s ruling is a judicial masterpiece that will reverberate across the globe for ages.
What the Kenyan Supreme Court has done is a rare gem in the world of law. It enters the pantheon of the greatest judicial decisions in recent modern history. Frankly, it reminds me of the 1995 ruling by the South African Constitutional court — State v Makwanyane — striking down the death penalty.
We already knew from the September 1 summary ruling what the full opinion was going to say. In spite of the blows raining on the Supreme Court from Jubilee, the judges didn’t disappoint. They didn’t wilt, or shrink. Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu, Justice Smokin Wanjala, and Justice Isaac Lenaola stepped up and did their jobs. Let me confess — I’ve never been more proud to be a Kenyan.
Let me tell you what the Supreme Court found. Without equivocation, the judges found that the IEBC, its Chair Wafula Chebukati, and his staff committed offences against the Constitution and the election laws of Kenya. They ran a shambolic election that grossly violated the letter and spirit of the supreme law of the land, statutory laws, and enabling administrative regulations.
The court found that the IEBC’s willful, manipulative, contemptuous, and reckless actions had negated the sovereign will of the people. In particular, the court ruled the IEBC had deliberately failed to conform its behaviour — on logistics, paperwork, tallying, transmission, and process — to the law as prescribed. Thus, the poll numbers announced were nothing but voodoo math.
The judges emphasized that elections are — as they must be — a process, and not a single event. The final tally is beside the point. The entire electoral process must be free of chicanery, manipulation, fraud, and secrecy for credibility, transparency, and verifiability.
The court said the IEBC had become a law unto itself, and even defied in contempt the court’s order to allow access to the servers. In so doing, the IEBC subverted the will of the people by conducting a fundamentally flawed process that was wholly incompatible with the letter, spirit, and the values of the Constitution. The court’s indictment of the IEBC is a total condemnation of Chair Wafula Chebukati, the commissioners, CEO Ezra Chiloba, and the staff.
I know counsel for IEBC and Jubilee must justify the fees they charged. That’s why they have been beating war drums against CJ Maraga, DCJ Mwilu, and Justice Wanjala, and Justice Lenaola. You will notice they’ve spared Justice Njoki Ndung’u and Justice Jacton Ojwang any opprobrium. That’s because the latter two justices dissented — as is their right — from the majority.
It’s not just counsel for respondents who are sweating it out. The regime’s top dogs, including the Jubilee duo of Uhuru Kenyatta and William Ruto — and their acolytes — have been threatening Trump-like fire and fury against the Supreme Court quartet that nullified the election. They’ve sworn to turn the Judiciary into a slave of the Legislature and Executive. Crude Jubilee’s earthlings like MP Ngunjiri Wambugu and State House propagandist — blogger — Dennis Itumbi have been dispatched against any real and imagined dissenters. In their sights are Maraga, Mwilu, Lenaola, and rule of law institutions and their partners like the Kenya Human Rights Commission, the International Development Law Organisation, Africog, the Ford Foundation, USAID, the Dutch Embassy, Open Society, and the KNCHR, among others. Defamatory attacks have been launched at me, Inform Action’s Maina Kiai, Africog’s Gladwell Otieno, KHRC’s George Kegoro, and other civil society leaders. Mr Ngunjiri has unleashed a petition of lies against Maraga, myself, and Mr Kiai, among others. We will make him and his partner-in-crime Itumbi pay dearly for libel. These factotums must appreciate the cost of libel law.
Finally, let me again salute the Supreme Court for going where no court has gone before. The Kenya Colony was founded as a crucible of exploitation of blacks by whites. The Republic of Kenya hasn’t been much different — ethnic elites crudely plunder the poor. The Supreme Court’s opinion has the potential to fundamentally alter the balance between ravenous elites and the people. But the people must reject being herded into tribal slaughterhouses by the elite.