Chief Justice David Maraga on Wednesday cut a lonely figure at the Supreme Court as a lack of quorum on the bench forced him to reschedule the hearing and determination of a case challenging the repeat presidential election.
The postponement of the case paved the way for the election on Thursday, which the National Super Alliance (Nasa), led by Raila Odinga, has chosen to boycott.
President Uhuru Kenyatta’s lawyers heaved a sigh of relief, while their Nasa counterparts were taken aback by the Supreme Court’s failure to raise the quorum, denying them a last chance to block the election.
Court clerks and the Deputy Registrar Daniel ole Keiwua were seen pacing up and down the court corridors and to and from the CJ’s chambers — a sign that all was not well — as Justice Maraga walked into the court room one hour late.
Three activists had sought to have the presidential election cancelled and rescheduled and the CJ had on Tuesday ruled the application as urgent and ordered that it be heard and determined.
However, it was only Justice Maraga out of the court’s seven judges who showed up when the court convened to hear the application.
He explained that Justice Mohamed Ibrahim, who has been sick, was still out of the country on treatment.
Two other judges, Justice Jackton Ojwang’ and Smokin Wanjala, were not able to go to court, while Justice Njoki Ndung’u was out of Nairobi and had been unable to catch a flight back.
Deputy Chief Justice Philomena Mwilu was also not available after her guard was shot on Tuesday night, Justice Maraga explained.
That left only the Chief Justice and Justice Isaac Lenaola available for the hearing, falling short of the minimum of five required to constitute the Supreme Court.
The applicants, Khelef Khalifa, Samuel Mohochi and Gacheke Gachuhi, had argued that the prevailing environment in the country cannot guarantee a credible poll.
They alleged that the electoral commission has been sabotaged and its officials frustrated, meaning that the fresh election could not be free, fair and credible.
Speaking outside the court, Siaya Senator James Orengo, also Nasa’s lawyer, read mischief in the absence of the other judges, saying it was part of the grand scheme to undermine the authority of institutions.
He said the shooting of the bodyguard attached to Justice Mwilu and the declaration of Wednesday as a public holiday were part of the scheme to ensure the hearing of the case did not proceed.
“The fact that the CJ could not mobilise a quorum is neither coincidence nor an accident.
“The declaration of today as a holiday was made to ensure these proceedings did not go on.
“When the CJ insisted the matter will be heard, there was an attempt on the DCJ’s life,” Mr Orengo said, adding that the failure of the CJ to marshal enough judges to hear the case was a continuation of attacks on constitutional commissions.
He also said the IEBC had been rendered ineffective through political interference.
Mr John Khaminwa, the lawyer of the applicants, expressed his anger at the failure of the judges to show up, saying he had been prepared to argue his case.
“I am unhappy I did not get an opportunity to argue my case,” he said.
Mr Haroun Ndubi, also for the applicants, said the judges owe Kenyans an explanation for failing to show up when Kenya needed them most.
President Uhuru Kenyatta through his lawyer Fred Ngatia wondered why the three applicants had delayed in filing the case.
It was his argument that the orders sought would inflict grievous harm to the public interest and the court should therefore decline to hear the case.
“There is no credible or admissible evidence tendered in support of the petition that the election scheduled for October 26 will not be conducted in accordance with the Constitution and the Elections Act,” Mr Ngatia had said in a sworn statement, adding that Article 140(3) of the Constitution does not contemplate fresh nominations for presidential candidates.
Mr Odinga, in his application to join the case, argued that although he had withdrawn from the race, he has a stake in the proceedings and that he had information that could help the court arrive at a fair and just determination.
He said his coalition had made numerous attempts to get the IEBC to carry out the necessary reforms and sought to obtain assurances and evidence of such compliance to no avail.
“To date, the IEBC has refused, failed or neglected to meet the said demands and to provide evidence of compliance with the decision of the court,” Mr Odinga said in an affidavit.
He added that instead, the public has been treated to grandstanding, partisanship and outright contempt by the IEBC in a manner that put to doubt its preparedness to carry out a free, fair and credible election.
The opposition leader argued that in the prevailing circumstances and environment, it was certainly impossible for the IEBC to carry out and guarantee a free, fair and credible election.
“It is for these reasons that I hold the deep conviction that I cannot endorse, condone, validate or take part in an election whose outcome has already been pre-determined through a flawed process.
“As a leader, my decision was premised on my respect for and promotion of the rule of law and most importantly fidelity to our Constitution,” he stated.
The IEBC and Attorney-General Githu Muigai opposed the case, saying the claims by the three applicants were speculative and the commission had taken steps to ensure that the directions of the court on the repeat poll are adhered to.
In a statement sworn by vice chairperson Consolata Nkatha Maina, the commission stated that the court has no jurisdiction to hear the matter because the petitioners were seeking a review of its own order.
IEBC chairman Wafula Chebukati was represented by Mr Peter Wanyama, who said he would be make oral arguments.
Attorney-General Githu Muigai introduced all the lawyers in court.