In an ideologically divided Supreme Court of Kenya, the two judges who returned dissenting determinations to the presidential election petition are cut from the same cloth.
Justice Jackton Ojwang’ and his counterpart Njoki Ndung’u were among the three judges who the Judicial Service Commission (JSC) had in May 2016 found to have misconducted themselves by participating in a protest over the commission’s decision to retire then Deputy Chief Justice Kalpana Rawal and Justice Philip Tunoi.
The letter notifying their withdrawal of services was also signed by Justice Mohammed Ibrahim, though he seems to have steadily been moving away from the Ojwang’-Njoki axis.
The JSC findings established that the decision of judges Ibrahim, Ojwang and Ndung’u to go on strike was unbecoming of them as judges of the Supreme Court and amounted to misconduct.
The JSC, however, determined the said misconduct did not meet the requisite threshold to warrant a recommendation for the appointment of a tribunal for their removal, as provided in the Constitution,” reads the communication issued by the JSC.
But former Law Society of Kenya CEO Apollo Mboya, who was the petitioner, has since moved to the High Court under petition number 204 of 2016 to demand that the JSC, having found the judges guilty of misconduct, ought to have recommended to the President to initiate their removal from office.
Mr Mboya’s petition is now consolidated by petition 218 of 2016 of Justice Ndung’u, in which she is accusing the JSC of not having accorded her a fair hearing.
The hearing for highlighting of submissions in the petition is set for September 20, which will be around the time the Supreme Court judges will be publishing their detailed judgment.
As well as the strike, during former Chief Justice Willy Mutunga’s sunset days, Justice Ojwang’ and Justice Ndung’u had both cast their lot with former DCJ Rawal and Justice Tunoi.
In fact, it was Justice Ndung’u who issued the stay orders suspending the Court of Appeal order on retirement age for judges.
In his dissenting opinion in the presidential election petition, Justice Ojwang’ had strongly differed with the majority decision, saying that “it is clear to me beyond peradventure, that there is not an iota of merit in invalidating the clear expression of the Kenyan people’s democratic will, which was recorded on August 8, 2017.”
“For my part, I would dismiss in its entirety the petition which came up before us, as it was devoid of requisite supporting evidence, just as it did not rest upon the pillars of the Constitution, the ordinary law, or the pertinent elements inherent in the configuration of a democratic election,” Justice Ojwang stated in his opinion.
Similarly, Justice Ndung’u said: “It was not proved that the voter’s will, during the conduct of elections, was so affected by any irregularities cited so as to place this court or the country in doubt as to what the result of the election was.”