By Omwanza Ombati and Moses Chelang’a
if there is a jurisdiction that the Justices of the Supreme Court of Kenya curses, it is the court’s exclusive original jurisdiction to hear and determine presidential election petitions. It is both legal and political.
In a highly divided country, the Court will be doomed whichever way it rules. Former Chief Justice Dr Willy Mutunga, conscious of the impact of “political jurisdiction” on the courts, expressed his frustrations in a public forum that courts ought not handle election disputes, and instead politicians should “deal with their own shit” elsewhere.
In his dissenting opinion in Bush v. Gore, Justice Stevens, underscoring CJ Mutunga’s thinking, sympathised with the Supreme Court of the United States following the highly disputed 2001 election dispute between George Bush and Al Gore opining as follows:
“Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”
Although SCOTUS does not have exclusive jurisdiction on presidential election dispute as Kenya’s, Bush v. Gore has been the court’s sore thumb that is thought to have led to a “court generated president”. Erwin Chemerinsky in his book The Case Against the Supreme Court notes:
“Bush v. Gore obviously cost the Supreme Court in terms of credibility. More than forty-nine million people who voted for Al Gore, and likely almost all of them regard the Court’s decision as a partisan ruling by a Republican majority [judges] in favour of the Republican candidate…”
Raila Odinga disputes his loss to the incumbent President Uhuru Kenyatta in the 8 August 2017 presidential election. The dispute is now before the Supreme Court. Raila Odinga had similarly petitioned the court following 2013 presidential election and the court dismissed his case. He had no kind words for the court following the infamous 2013 decision. In his own words, this petition gives the Court a second chance to “redeem itself”.
The crux of Odinga’s petition is that the election was a fraud. He argues that the election was incapable of being verified, technology was interfered with to give a constant lead to President Kenyatta, the election results do not tally, and Uhuru stole victory. The petition seeks that the Court departs from its 2013 decision, more particularly on the issue of rejected votes, which he says ought to be included in deciding whether the winning candidate got the 50% plus one vote threshold.
The Court’s composition has not significantly changed since 2013 election petition. Whereas the judges will be persuaded by the facts, evidence and law in rendering their own decision(s), there are also particular judge’s prejudices, biases, jurisprudential leanings, political associations and philosophy and even religious or cultural convictions which may influence the outcome.
Chief Justice David Maraga
David Maraga is the Chief Justice and President of the Supreme Court. He will preside over the petition. He comes with solid understanding of and experience in the law both in the bar and the bench. His most remarkable election petition decision is the often cited Joho vs. Nyange. He also chaired the Judiciary Committee on Elections immediately before his appointment as Chief Justice. His knowledge on electoral disputes is undoubted.
Maraga CJ is an ultra conservative in his persuasion and leaning. Raila will have to table cogent evidence to convince him to overturn the presidential election. He is a new vote and voice in the court.
He is also an unapologetic Adventist. Even in his judgments, he doesn’t shy away from showing his pious side. For example, in a troubling 2007/2008 post-election violence murder case of Republic v. Stephen Kiprotich Leting & 3 Others (2009)eKLR where he was trial judge, he invoked his responsibility as a judge of evidence, facts and law, even though “he sympathised with the victims of the case”, given that the prosecution mismanaged the case. He said, “…my family and I have prayed over for divine guidance”. Before the Judges and Magistrates’ Vetting Board where he had been accused of nepotism and corruption, he dramatically swore by the Bible that he had never taken and would never take a bribe.
Maraga is the quintessential High Priest of the Court. He can be equated to Pontius Pilate and we don’t see him convicting without sufficient and cogent evidence.
DCJ Philomena Mwilu
Like Maraga, Justice Philomena Mwilu is a new vote to the Court. Her rise to the Supreme Court almost hit a snag when Kandara legislator Hon. Alice Wahome made scandalous but unfounded corruption allegation against her in an election petition where Wahome was a party with Justice Mwilu presiding.
As the Deputy Chief Justice, she is the de facto leader in the judiciary. She is also a diplomat and operates efficiently within the ranks. While she is a good case manager, she has not authored a zinger of an opinion that can make one attribute her inclinations in jurisprudence. Because of her position and little known history, Justice Mwilu can safely be said to be a centrist who is likely to vote with the majority.
Justice Mohammed Ibrahim
Before joining the bench, Judge Ibrahim was a successful practitioner and suffered in the second liberation struggle when he was detained for activism. His comrades in arms include his former law partner Paul Muite SC, Gibson Kamau Kuria SC, John Khaminwa and Raila Odinga.
His most famous decision was the anti-piracy case while serving in the High Court at Mombasa when he declared the State had no powers to charge pirates who had been arrested beyond Kenya’s terrirorial waters. The case was later overturned in the Court of Appeal where, interestingly, Justice Maraga wrote the lead judgment.
In the Supreme Court, he has authored progressive opinions, both concurring and dissenting. For example, in Jasbir Singh Rai & 3 Others v. Tarlochan Singh Rai Estate & 4 Others (2013)eKLR, where the Court was invited to depart from or review its earlier decision in S.K. Macharia & Another v. Kenya Commercial Bank Limited & 2 Others on the constitutionality of Section 14 of the Supreme Court Act, Justice Ibrahim was the sole dissenting voice of the court who thought that the court should depart from its earlier decision. Raila Odinga’s petition is seeking the Court to depart from its earlier decision in 2013 petition on the issue of rejected votes. This issue if well prosecuted, may find a vote in Justice Ibrahim.
In the same case, he wrote an illuminating concurring opinion on the issue of recusal of Hon. Justice Tunoi from the matter on account of bias and conflict of interest.
Justice Ibrahim is a liberal. To make his mark, if presented with sufficient evidence to overturn a presidential election, he would have little difficulty doing so.
Justice Prof. J.B Ojwang
Justice J.B Ojwang is the fourth ranking member of the Supreme Court, with possibly the highest ranking academic title in laws. Heg has authored a book titled Constitutional Development in Kenya: Institutional Adaptation and Social Change, in which he develops an argument that constitutional development in Kenya should adapt to “development needs, and its practice should be flexible enough to allow for appropriate institutional innovations to take root”. While the good professor of law had freedom of intellectual and scholarly expression, this work did not sit well with his colleagues in the academia such as Prof. Kivutha Kibwana. He was seen as an apologist to the state excesses and he has not proved otherwise.
Justice Ojwang is a status quo person and entrenched conservative. He will have no reason to depart from his earlier opinion unless a legal miracle happens.Outside the text of the law, Justice Ojwang has been accused of a bad temper not befitting a judge. He is unapologetic about his views, he regards himself highly.
Justice Suzanna Njoki Ndungu
Justice Njoki Suzanna Ndungu is the fifth member of the Supreme Court. Before joining the court, she served a term as a nominated Member of Parliament through former President Mwai Kibaki’s led Narc after a stint of activism. While in Parliament, she sponsored the acclaimed Sexual Offences Bill which was subsequently supported by government and later became law. This is her signature legislative achievement. She was also a member of Committee of Experts which crafted the Constitution of Kenya 2010.
In the Supreme Court, she has distinguished herself as a patron saint of dissenting opinions, having authored the highest number of persuasive dissenting decisions thus far.
Together with Justice Prof. J.B Ojwang, she dissented in the retirement age case. Despite her activism background and young age, she is widely perceived as blue blood system. She sat in the 2013 petition and cannot easily overturn a presidential election. She belongs to the status quo.
Justice Dr. Smokin Wanjala
Justice Dr Smokin Wanjala joined the Court after his stint as a director at the defunct Kenya Anti Corruption Authority, the predecessor of Ethics and Anti-Corruption Commission. He was also active in civil society and had a distinguished academic career.
In examining Justice Wanjala against high achievements in academia, civil society and government, we apply the Biblical doctrine of “for those that much is given, much is expected.” Justice Dr Wanjala sat in the 2013 petition. He should therefore be judged with the others in that case and other decisions of the Court, including the Munya case, which recreated the constitutional doctrine of jurisdiction in the name of “normative derivative”, and opened wide the Supreme Court door to limitless jurisdiction over all electoral disputes.
Justice Dr Wanjala is young, and an over-cautious liberal. He will be a significant vote on the outcome of the petition.
Justice Isaac Lenaola
Justice Isaac Lenaola is the youngest member of the Court; he comes with solid credentials and is a first among equals. Justice Lenaola has been a judge in the High court where he made his mark, the East African Court of Justice and the Sierra Leone Special Tribunal.
There are numerous bold decisions that he has delivered and worthy of note is the judgment delivered by the East African Court of Justice which barred the Tanzanian government from constructing a road through the Serengeti National Park and therefore interfering with the East African eco system. He recently ruled against the State in the case of Hon. Kenneth Matiba as an indictment against torture and awarded his family the sum of Kshs. 504 Million. He is therefore a true jurist in the form of Justice Warren Burger. He is a practical liberal with a pinch of common sense. In his interview for the position, he says he is a pragmatic liberal. Justice Lenaola can be persuaded depending on the evidence presented by either side.^ (ilaw.co.ke)