By Payton Mathau
The aftershocks of the August 8, 2017 election are still reverberating in certain quarters, months after the inauguration of President Kenyatta for a second term. If for nothing else, Kenyans are still waiting to see whether former Prime Minister Raila Odinga will swear himself in what would be a textbook copy-paste of Ugandan opposition leader Dr Kizza Besigye. The country is still unsettled.
But it’s in the corridors of justice that the after-effects are strongest. For instance, the difference between the majority decision of the Supreme Court and the dissenting judgment of Justice Njoki Ndung’u on the contentious Form 34 is still outstanding. Lawyers, and even keen ordinary Kenyans, are not over the shocking revelation that members of the same Court were addressing different Forms 34A. The forms assumed huge significance in light of the fact the President’s victory was annulled on the basis that the form 34As analysed by the court were unsigned.
Strangely, the forms – deposited with the Supreme Court by the Independent Electoral and Boundaries Commission (IEBC) – relied upon and examined by Justice Ndung’u, were signed. The source of this disparity remains a mystery.
Both the Judiciary and the Chief Justice have not investigated this curious development, to establish if the forms that were relied upon by the majority in annulling the August 8 presidential result were fake. Indeed, it was expected that once that issue came to light, the Chief Justice would constitute or order an investigation with a view to protecting the integrity of court processes.
The Nairobi Law Monthly can exclusively report that the police and the Ethics and Anti-Corruption Commission have undertaken an exhaustive investigation on the Forms 34A used by the Supreme Court to annul the election. In their report, investigators make the startling finding that the forms relied upon to annul the first presidential results were made at a lawyer’s office at the Kenya Reinsurance Plaza, just opposite the Supreme Court building.
The police report implicates and recommends the arrest and prosecution of a number of senior judicial officers, who the police find to have played a critical role in embedding the fake forms within the court process when the recount and auditing was undertaken by the Supreme Court.
Among the judicial officers the report recommends for arrest and prosecution is a senior judge of the Supreme Court and two senior registrars of the Judiciary. It also recommends the arrest and prosecution of two lawyers, one of whom is an employee of the IEBC.
According to multiple sources involved in the investigation who spoke to the Nairobi Law Monthly on condition that their names not be revealed due to the sensitivity of the matter, the fake Forms 34A were part of an elaborate scheme in which members of the judiciary colluded to ensure that the Court invalidated the presidential result.
The report is currently being finalised by the police, according to our source, and will shortly be transmitted to the Office of the Director of Public Prosecutions for action. ^