The relationship between Jubilee leadership and Judiciary is headed for more rocky waters as the ruling coalition plots an all-out war designed to bring new faces to the Supreme Court.
Still smarting from the court verdict annulling President Uhuru Kenyatta’s election victory and calling for fresh presidential poll, the Jubilee administration has a set of options to help it achieve its intentions.
Several leaders in the party intimated to the Nation that formation of a Parliamentary Select Committee or appointment of a Commission of Inquiry to look at the whole episode of the Supreme Court decision are being considered.
This is besides the many petitions that have been filed and the move by Jubilee MPs to push for changes in laws relating to elections and those that could touch on the top court.
The Commissions of Inquiry Act 2012 gives the President a wide mandate to investigate any matter he deems fit.
Section 3(1) reads: “The President, whenever he considers it advisable so to do, may issue a commission under this Act appointing a commissioner or commissioners and authorising him or them, or any specified quorum of them, to inquire into the conduct of any public officer or the conduct or management of any public body, or into any matter into which an inquiry would, in the opinion of the President, be in the public interest.”
Jubilee insiders say that though there is already a petition before the Judicial Service Commission which may lead to the President appointing a tribunal against Deputy Chief Justice Philomena Mwilu and Justice Isaac Lenaola, their findings may not be conclusive since they will already be limited to the duo’s conduct.
Moreover, the prospect of JSC recommending formation of a tribunal may be doomed especially now that Jubilee feels it does not have control of the crucial commission.
On the other hand, a Parliamentary Select Committee may be too polarising and its recommendations could have negative effects.
Commissions of Inquiry are rarely formed and they only come into play in matters of national interest.
In his first term, President Kenyatta has not appointed one and his predecessor Mwai Kibaki appointed only two – the Justice Bosire commission on the Goldenberg scandal and the Lady Justice Rawal commission on the death of Internal Security minister George Saitoti.
Sources indicated that the President may tap a respected judge from the Commonwealth to head such a commission with a wide mandate to include, among others, the issues mentioned in the petitions against the two judges.
President Kenyatta on Wednesday said Supreme Court judges had effected a “judicial coup” and is also on record as saying his government will “revisit” the decision of the judges in future.
“The Supreme Court owes Kenyans an explanation on how such a monstrous injustice could have taken place. Not only did the judgment rob the Kenyan people of their democratic rights as exercised on August 8, but it also now has the potential to throw our country into judicial chaos. The effect and precedent set in that singular judgment says a bench can nullify the decision of millions of Kenyans without due regard to evidence. This position is diametrically opposed to the sovereign right our people have to elect leaders of their choice as enshrined in our Constitution,” said the President.
The plans are, however, hinged on the premise that Mr Kenyatta will emerge victorious on October 26. But Jubilee Party Secretary-General Raphael Tuju told the Nation: “We will definitely revisit; what is to be agreed on is the format, it may be through Parliament or any other option. If we do not, it will recur.”
Senate Majority Leader Kipchumba Murkomen admitted that there are several ongoing initiatives but that the primary focus remains winning the election.
“Any postmortem on what happened on August 8 will be done after the elections. But it’s important to note that people should not fear if they did no wrong,” he said.
The Jubilee majority in Parliament is also set to make far-reaching amendments to various electoral laws in the coming days ahead of October 26. Three key ones that will be affected are the Independent Electoral and Boundaries Commission Act, Supreme Court Act and the Elections Act.
Jubilee is already facing opposition for its sustained attacks on the Judiciary from the opposition and civil society but if it retains the presidency, coupled with a commanding majority in both Houses, it will be easy to execute its plan within the law.
The party has also been buoyed by the dissenting opinion of Lady Justice Njoki Ndung’u when she said her fellow judges did not look at the evidence that was presented before them.
Mr Tuju yesterday, at a press conference, said they fully support the petition to have the Supreme Court Registrar’s conduct be looked into.
SUPREME COURT JUDGES
The petition to the JSC by little-known Derrick Malika Ngumu seeking investigation of two Supreme Court judges is part of the plot. In his petition against Justices Mwilu and Lenaola, Mr Ngumu said he was in possession of highly confidential and detailed documents and evidence relating to their conduct.
The documents contain all call logs and SMSes of the cell phone numbers of the judges and the advocates who represented National Super Alliance (Nasa) in the case filed before the Supreme Court.
He also claims that Justice Mwilu and Busia Senator Amos Wako, who was acting for Nasa in the case, met and discussed the case before it was filed.
Justice Lenaola has, however, written a demand letter with the aim of suing over the claims he termed unfounded.
Ms Amadi, who is the secretary of JSC, said the commission has also received petitions from Nyeri Town MP Ngunjiri Wambugu, who wants Chief Justice Maraga investigated. Although the MP had been asked by President Kenyatta to withdraw the petition, he is yet to formally do it.
Mr Ngumu filed another petition with Chief Justice David Maraga seeking a reversal of the decision nullifying the August 8 presidential election. Once JSC receives the petition, the judges will have 21 days to respond as required by law.
Before the dust could settle on the petitions, a voter wrote to EACC asking it to investigate Supreme Court Registrar Esther Nyaiyaki for allegedly presenting a doctored report to Supreme Court judges. Mr Rashid Mohammed, in a letter through lawyer Kioko Kilukumi, said the doctored report led to the Supreme Court nullifying Mr Kenyatta’s election. The same report was discredited by Justice Njoki Ndung’u in her dissenting opinion.
Mr Tuju said it is unclear who between Parliament and the President will initiate the investigations.
“If we are going to spend not less than Sh20 billion when you factor what IEBC, security and the political parties themselves are going to spend – look even the stock market lost over Sh100 billion – then as a country we are duty bound to revisit this matter and find out what happened. Look, the Supreme Court is discordant in every way, unless we revisit, it will recur. It’s about Kenya,” he said.
Mr Tuju said the issues that have emerged after the decision was first made was more reason investigations are needed.
He added that the President has his powers which he exercises within the law.
“If the decision of the judges was unanimous, that’s a different matter, but on the day of reading the judgment, one judge (Smokin Wanjala) was nowhere to be found and it emerges that not all evidence was reviewed. Then it further emerges that some judges had contact with the petitioner’s lawyers. It is appropriate then that this matter is revisited so that we know the truth,” said Mr Tuju.
Even as the war on the Supreme Court takes shape, Parliament will this week form the long awaited committees paving the way for changes in the various election related statutes.
In his address to the nation on Thursday, President Kenyatta said Parliament will address the issues that emerged from the Supreme Court’s decision.
“The judgment has also created uncertainties and raised matters that require legislative attention. I have therefore requested that Parliament should expeditiously address itself to the issues raised in order to protect our country from any ambiguities and or that may arise from this judgment,” he said.
ODM Director of Elections and Suna East MP Junet Mohamed, who said he was aware of the proposed amendments, warned of mass action if the changes are made.
“Jubilee has lost in the courts and now they want to retreat to Parliament where they computer generated numbers. We assure them that Kenyans won’t stay aside as they make illegal and unconstitutional changes. They will understand what power belongs to the people means,” he said.
He said that had Jubilee not amended the joint parliamentary committee report chaired by then senators Kiraitu Murungi and James Orengo the current quagmire would have been avoided.
The Nation learnt that the IEBC Act, section 6(1), will be amended before the October 26 presidential election. This section stipulates that for one to qualify for appointment as chairperson of the Commission he or she shall be a person who is qualified to hold the office of judge of the Supreme Court under the Constitution.
For one to be a judge, he or she must be a lawyer, but at IEBC only the chairperson Wafula Chebukati is a lawyer currently.
“The upshot of this little section of the law is that if Mr Chebukati was to be in a position that he cannot turn up for whatever reason to announce the winner of the presidential election we would be in a serious constitutional crisis,” said the source. The law states only the chairman can act as presidential election returning officer.
The new proposal will state that the chairman need not have a law degree as is currently is the case.
Jubilee will also water down the chairperson’s powers to ensure that for a decision be arrived at, it has to have to be endorsed by at least three commissioners.
Moreover, the IEBC Act will have a new section that will see the vice chairperson duties enhanced to allow the occupier of the office to carry the duties of the chairman in his absence.
“The era of unilateral decisions of the chairman at IEBC will end,” said a source.
This is in reaction to decision by Mr Chebukati, a fortnight ago, to write a memo to CEO Ezra Chiloba telling him to explain various shenanigans that allegedly took place during the August 8 General Election.
The Elections Act is also earmarked for radical changes with the sum effect of delaying transmission of results.
The amendment will stipulate that results transmission will be done once Form 34B is completed. This will in effect make the election entirely manual.
Gatundu South MP Moses Kuria said this will deter claims of rigging.
“Results transmission will only be done once Form 34B is compiled and therefore 34As will have to wait till the constituency Returning Officer is ready with all the results,” he said.
A new section could also be added to Supreme Court Act to the effect that it will require a minimum of five judges to overturn a presidential election.