When Chief Justice David Maraga on September 1 read the order of the majority four judges of the Supreme Court nullifying President Uhuru Kenyatta’s election victory, he read a churchy statement as prologue. “The greatness of a nation lies in its fidelity to its Constitution and strict adherence to the rule of law, and above all the fear of God,” he said.
In the judgment delivered on Wednesday, Justice Maraga and the majority judges despoiled the Constitution, declared that the rule of three men and a woman is far superior to the rule of law, and joined a long list of human beings, starting with Adam and Eve, who openly defied God.
Justice Maraga’s high-sounding calling was unmasked by the court’s judgment to be nothing more than a fanciful embroidery of rhetoric. Happily, the judgment brought to an end the Maraga Court’s priestly pretentions to holiness and constitutional fidelity.
The judgment was a political edict firmly grounded on a philosophy that the end in giving Mr Raila Odinga a second chance to win the presidency justifies the means deployed by the court to deny President Uhuru Kenyatta victory.
The judgment was a gratuitous judicial attempt to give purpose and meaning to Mr Odinga’s personal peregrinations.
To the court’s credit, the judgment makes no pretence that it was grounded on any known notion of the law. It is brimming with palpable deficiencies and obvious inconsistencies, is doctrinally incoherent, inelegant and insufficiently reasoned, and is defined by a disconcerting, undisciplined, and cavalier approach.
The court heavily relied on questionable presumptions. The judgment was an exercise in judicial populism designed by the four judges to form the foundation of an ambitious judicial empire building enterprise.
The judgment has a false façade of legality and its legal reasoning is so scant that it could not fill a peanut shell. Kenyans can see that the judgment is so political and the legal phrases peppered over it so unconvincing, that the court’s attempt to hide the elephant in a mouse hole is a scene to behold!
The law applicable to election disputes is universal. Our courts subscribe to that approach. For any court to nullify an election, the petitioner must show the court that the irregularities he complains of affect the result.
The test is simple and objective. It is a simple, mathematical approach. It rules out the subjective test that makes the judge rule on his emotions or political beliefs.
In this case, Mr Odinga’s case was cut for him. He was to show the court that the irregularities he complained of would lead to deductions of over 1.4 million from Mr Kenyatta’s numbers and a further addition to his numbers would show he was the winner. Remember in the 2013 presidential petition, Mr Odinga’s task was much easier; he was tasked to show how a mere 7,000 votes should be deducted from Mr Kenyatta’s numbers, so the court could order a re-run between the two candidates.
In 2013 he failed to satisfy the court with such a paltry figure. In 2017, according to Justice Maraga, Mr Odinga has satisfied the court. How? Very simple. Justice Maraga and his colleagues in the court changed the test from a legal one into a political one and ruled that Mr Odinga passed the test with flying colours.
In the process, Justice Maraga and the court inaugurated a hitherto unknown test, which states that garnering the highest votes alone can’t win you an election.
In order to justify the decision by the court to nullify President Kenyatta’s win, the court inaugurated a political test, wrapped in a jiggery-pokery reading of the law.
It states that process of election is as important as the votes a candidate gets. The scope of the “process test” is unknown. No court anywhere in the world had applied such a subjective, fluid, and fragile test to nullify an election.
The process test means that the court has a marking scheme that tests and grades every stage of the election process, right from voter registration to result declaration.
For instance, if the rallies are peaceful, rowdy or violent, the court will grade the candidates accordingly.
The hours polling stations open will also be graded. The transmission of results will be graded too. The long lines of voters are important issues. Instructing your agents or bribing a returning officer not to sign forms is enough to invalidate an election under the process test.
The question the court did not answer is; since the process test can invalidate an election, can a perfect process win an election for a candidate who got the least votes? The court’s judgment is too radical. It takes the say to elect our leaders from ordinary Kenyans and bestows it on the court. It poses a threat to our constitutional democracy.
Mr Odinga never brings legal grievance to the courts. He didn’t in 2013. He didn’t in 2017. Mr Odinga always brings to court a sorrowful bundle of personal grievance informed by the zeal to have his way.
This is further enveloped by a sense of entitlement to be president and four times of near-misses. Mr Odinga doesn’t litigate on facts or empirical evidence. He litigates on his fears, hope and state of mind.
He has loyal and vociferous groups of myth makers in civil society who credit him with all historic milestones in Kenya and make excuses for all his failures.
His complaints before the court were an omnibus full of fiction and wild fantasies. He alleged that computer systems at IEBC were captured and manipulated.
He brought a laughable algorithm formula, which according to him showed how his victory was stolen. He alleged that over 500,000 voters just voted for the president alone.
He alleged that fake polling stations were created and manned by fake returning officers. All these allegations were false, and he knew it. The court found them false.
History will heap all praise and blame for the judgment ultimately on Justice Maraga. By changing the law, and in overruling tens of the court’s past decisions, to give Mr Odinga a second chance and consciously align the court’s judgment with the political aspiration of a single individual, Justice Maraga in the process wrecked the institutional legitimacy of the Supreme Court. Further, he loudly announced to Kenyans that the era of innocence and neutrality of the court is over.
From now on, the court will no longer, and rightly so, be seen as an honest neutral arbiter of political disputes in the nature of a presidential election.
It will be seen as a court where judges will decide cases according to their personal political preferences. It will be seen as a court with a political agenda, which will not allow certain candidates to win an election.
No doubt, Justice Maraga will be idolised and immortalised in the folklore of Mr Odinga’s supporters. He will bask in the glory of nullifying a presidential election in an African country.
But his gains are the losses of the Supreme Court of Kenya. At a time when great judicial statesmanship was required to shield and protect the court, Justice Maraga was carried away by the excitement of the moment and in palpable excitement threw the court to the political wolves, whom he invited to feast on the flesh and soul of the court.
Mr Abdullahi, senior counsel, represented President Kenyatta in the petition