At the time the six Supreme Court judges emerged to tell the anxious public of their decision concerning the presidential election petition on Friday after 11 am, a lot had taken place as some people made concerted efforts to influence the decision.
Four out of six Supreme Court judges on Friday upheld arguments by the National Super Alliance candidate Raila Odinga that the August 8 presidential election did not meet the constitutional and legal threshold in a bold decision whose reverberations will be felt in the country and the African continent for a long time.
Justice Jackton Ojwang’ and Justice Njoki Ndung’u dissented.
“A declaration is hereby issued that the presidential election held on August 8, 2017, was not conducted in accordance with the Constitution and the applicable law rendering the declared result invalid, null and void,” Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu, Justice Smokin Wanjala and Justice Isaac Lenaola decreed.
The four judges further made a declaration that President Uhuru Kenyatta was not validly declared the president-elect and the declaration by IEBC “are invalid, null and void.”
But it wasn’t easy. The Supreme Court judges were aware they were being watched and whatever decision they made would be celebrated by a section of the political divide and criticised by the other.
Sources say that from the outset, CJ Maraga and Lady Justice Mwilu had made up their minds that the process matters more than the outcome and if the process is wrong then the outcome is equally wrong.
On the other hand, Justice Wanjala is said to have been conscious of the criticism leveled against the decision issued by the bench he sat on in 2013 that ruled against the Coalition for Reforms and Democracy candidate Raila Odinga.
With Justice Mohammed Ibrahim indisposed, the focus by some influential Jubilee-affiliated officials was to get Justice Lenaola to change his mind and cast his lot with Justices Ojwang’ and Ndung’u.
“The person who tilted the decision was Justice Lenaola,” former Law Society of Kenya CEO Apollo Mboya told the Nation. “Had he allowed himself to be influenced, we would have ended up with a tie among the judges which would have meant that the results as declared by IEBC on August 11 stand.”
After the hearings concluded on Tuesday, the judges then retreated to a hotel in Nairobi’s Upper Hill.
They later relocated to a secret venue within the city and agreed to switch off their phones.
However, that did not stop state agents from going after them.
Meanwhile, a Cabinet Secretary and two city lawyers on at least three occasions visited one of the judges’ house in Nairobi selling what they said was the government’s position.
From our sources, the judge would welcome them and tell them that they would decide according to the law and what is good for the country.
This, the three misunderstood the judge was going to play ball. In fact, one of the lawyers even assured his friends that things had been sorted out.
But by Thursday afternoon, one of the judges is said to have leaked out information that things would not go the way of the Independent Electoral and Boundaries Commission (the first respondent) and President Uhuru Kenyatta (the second respondent), prompting more attempts to make the judges change their minds — targeting at least one more judge to change his mind.
Attempts to talk the four judges out of nullifying the election, the Sunday Nation has learnt, went well past midnight on Thursday when the people who were making efforts to influence the judges gave up.
This could have informed the decision by politicians allied to Jubilee including Aden Duale and Kipchumba Murkomen and some lawyers not to appear in court on Friday morning when the Supreme Court made its determination despite having been present throughout the proceedings from Sunday to Tuesday.
The judges having made the determination, there seems to have been a full-blown character assassination campaign targeting them..
So far, malicious information is being spread targeting Chief Justice Maraga, Deputy Chief Justice Mwilu and Justice Lenaola.
For instance, some claims emerged on social media that the CJ had flown out of the country immediately after delivering the decision.
However, on Saturday the CJ was at the Nairobi Central SDA Church, Maxwell, where he is a member.