September 1, 2017: The silence at the Supreme Court of Kenya was palpable, creating an enveloping mood of tension.
Chief Justice David Maraga was the man of the moment in the case in which presidential candidate Raila Odinga sought to have President Uhuru Kenyatta’s victory in the August 8 race overturned.
Behind the scenes, the Jubilee political paladins had earlier hoped for a miraculous triumph but it was becoming clear they were about to witness what they later termed a “judicial coup”.
On that day, President Kenyatta’s lawyer, Mr Fred Ngatia, was conspicuously absent.
Nasa prodigies had prayed for a judicial victory — and were all smiles as they walked to the court and took their seats, led by Mr Odinga and his running mate, former Vice-President Kalonzo Musyoka.
“The greatness of a nation,” Justice Maraga said in his opening remarks, “lies in its fidelity to its Constitution and strict adherence to rule of law and above all, fear of God”.
The hearing of the petition had been concluded on Tuesday, August 29 past 9pm.
Justice Maraga was tense and the wrinkles on his forehead were visible during the televised ruling.
Then came the bombshell: “The decision of the court is that the (IEBC) failed, neglected or refused to conduct the presidential election in a manner consistent with the dictates of the Constitution.
“The (IEBC) committed irregularities and illegalities in the transmission of results.”
The court — by a majority decision of Justice Maraga, Deputy CJ Philomena Mwilu, Justice Smokin Wanjala and Justice Isaac Lenaola — said it was satisfied that the “irregularities and illegalities” affected the outcome of the election and ordered a repeat within 60 days in accordance with the law.
“Elections,” they said, “are not an event but a process.”
Two judges, Justice Njoki Ndung’u and Justice Jackton Ojwang’, dissented, saying Mr Odinga had failed to prove claims the polls were rigged in favour of Mr Kenyatta.
The two said the polls were free, fair and credible as described by international observers.
Justice Ndung’u said every election faces challenges and if they occurred, they were not deliberate or in bad faith.
By the time the reasoned judgment of the Supreme Court was read, political temperatures had started to rise.
President Kenyatta had on the afternoon of September 1 dismissed the judges who overturned his re-election as wakora (thugs) and vowed to revisit the issue.
“I personally disagree with the ruling but I respect it. Six people have decided that they will go against the will of the people,” he said.
While the ruling was supposed to open a fresh round of campaigning between Mr Odinga and President Kenyatta, the Nasa leadership made some new demands before they could participate in the race.
At first, they targeted the removal of both IEBC chairman Wafula Chebukati and CEO Ezra Chiloba.
Mr Odinga had described the ruling as “historic” and said: “We have no faith at all in the electoral commission as currently constituted. They have committed a criminal act and most of them belong in jail.”
This triggered a fervent campaign for the removal of the commissioners before it was realised that their removal could jeopardise the fresh election since the chairman was the returning officer and could only be appointed by the President after approval by Parliament.
But the President had no powers to appoint a commissioner at the time of election.
That left the focus on Mr Chiloba who was now targeted by Nasa through demonstrations and in public rallies. Finally, he took leave.
As Jubilee Party took to the campaigns, Mr Odinga found solace in regular press conferences and finally came up with what was known as “irreducible minimums” that must be met before he can take part in the poll.
Meanwhile, the IEBC had gazetted Mr Odinga as the only challenger to President Kenyatta and the Jubilee Party was wary that a withdrawal by Mr Odinga could lead to a constitutional dilemma.
Dr Ekuru Aukot, a presidential candidate, had gone to court seeking his inclusion in the race.
But, a day before a ruling on his case was made, Mr Odinga formally withdrew from the race, hoping to force nominations.
The High Court allowed Dr Aukot to run.
Mr Odinga started a campaign of “no reforms, no election” and called for an election boycott.
On the day of the election, Nasa supporters in Nyanza counties managed to stop the IEBC officials from delivering voting materials.
A total of 7.4 million voters cast their votes for President Kenyatta, giving him another mandate as Mr Odinga announced the formation of the National Resistance Movement.
IEBC was unable to hold elections in 25 constituencies in Nyanza but says the failed elections will not affect the final result.