When the Supreme Court judges turned up on September 20 to deliver their detailed judgment for either nullifying the presidential election or dissenting, the public felt all the questions they had regarding the petition were going to be answered.
Unfortunately, that has not been the case as the dissenting judgments specifically left more questions than answers.
One of the sticking issues, and which the Jubilee brigade have latched onto to attack the majority judgment, is Justice Njoki Ndung’u’s assertion that her colleagues did not scrutinise the results declaration forms in making their opinion to annul the August 8 presidential election.
“The court, however, had the option to personally examine the original forms deposited in the registry; the majority did not do so,” she states in paragraph 662 of her dissenting judgment, and adds that “in the interest of justice” she examined each of the forms that had been disputed.
, terming the majority judgment a “monstrous injustice.”
“It is now manifestly clear that despite the fact that the relevant forms had already been deposited in court by the Independent Electoral and Boundaries Commission (IEBC), no proper scrutiny or verification ever took place, which would otherwise have brought the court to the inescapable conclusion that the election result of August 8 was valid,” President Kenyatta said on Thursday.
But, according to critics, Justice Ndung’u’s assertion raises the question as to when she carried out the scrutiny.
And, if indeed she did, former Law Society of Kenya (LSK) chief executive Apollo Mboya wonders at what time she scrutinised the forms since her summary of the judgment had no reference of such.
“Had she looked at the forms at the time of delivering the summary judgment on September 1? If one had to look at the forms, the time for doing so was before making an opinion to nullify or uphold the election but there is no hint of this in Justice Ndung’u’s summary dissenting judgment,” said Mr Mboya.
He adds that it was not humanly possible to scrutinise the disputed forms within the limited time the Supreme Court had to deliver its judgment on September 1.
As well as Mr Mboya, an informed source in the judiciary wondered if Justice Ndung’u could be forgetting that the Supreme Court registrar’s report was based on all the documents that had been presented by the petitioner and the respondents, as well as what IEBC filed consequent upon the court order for scrutiny.
The other question that has been raised is on the matter of the number of pages for the three judgments. The four judges who formed the majority – Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu, Justice Smokin Wanjala and Justice Isaac Lenaola – together wrote a 178-page judgment while Justice Ojwang’s dissent was 91 pages. On the other hand, Justice Ndung’u had 440 pages which included a tabulated scrutiny of the results forms.
Writing in the current edition of the The East African, Nation Media Group’s head of legal services Sekou Owino noted that “At 440 pages, it probably is the longest dissent in any case in the Common Law the world over.”
“Standing against the majority opinion of 178 pages and Prof Ojwang’s dissent of 91 pages, the tone by Justice Ndung’u also stands to interest legal historians for that reason,” Mr Owino added.
The Supreme Court judges have become the subject of attack and negative innuendo. For instance, Nasa presidential candidate Raila Odinga on Friday claimed one of the judges visited State House ahead of the delivery of the judgment.
“Talking of the ruling by the so-called dissenting judges, we challenge Uhuru to deny that one of the dissenting judges spent all Saturday at State House at his invitation in a celebration of the dissenting ruling ahead of its delivery,” the Nasa leader had said.
On the other hand, Jubilee has also launched a barrage of attacks on the integrity of the judges who ruled in the majority, with President Kenyatta insultingly calling them “wakora (conmen).”
At least four petitions, all which have the hallmark of State backing, have been filed with the Judicial Service Commission (JSC) demanding the investigation and eventual removal from office of CJ Maraga, DCJ Mwilu, Justice Lenaola and Supreme Court registrar Esther Nyaiyaki who supervised and wrote a report on the access to IEBC servers and records.
JSC has publicly condemned “these mindless acts of aggression against the Judiciary” and dared those negatively profiling and threatening them for their independence to “call a referendum and abolish it (the judiciary) altogether.”
Justice Lenaola, who is one of the Supreme Court judges that has been negatively profiled, has since demanded an apology from State House director of Digital Communication Dennis Itumbi and the Standard Group or else he institutes a defamation suit.
Dissenting judgements specifically left more questions than answers