October 25 was a tale of two sides in the Judiciary — both of which left uncomfortable questions weeks after a Supreme Court decision to nullify the presidential election raised the institution’s profile.
In the morning, an embarrassed Chief Justice David Maraga had to call off a sitting to hear a case calling for the rescheduling of the fresh election planned for October 26 for lack of quorum but, in another curious incident on the same day, three Court of Appeal judges sat late in the night to suspend Justice George Odunga’s ruling that found the appointment of returning officers illegal.
“Dear CJ Maraga, you’ve obligation to tell us why you didn’t get Supreme Court quorum in the day & Court of Appeal got theirs in the night!” lawyer Donald Kipkorir tweeted.
Mr Nelson Havi, who had filed a separate appeal at the second highest court on the land challenging the inclusion of Thirdway Alliance presidential candidate Ekuru Aukot in the poll, expressed surprise at the failure of the court to listen to his matter, only for the judges to convene at 7.30pm to suspend Justice Odunga’s ruling.
The lawyer told the Sunday Nation that he was prepared to argue his case but on Tuesday, he called a clerk at the Court of Appeal registry, only to be told there would be no hearing as the next day would be a public holiday.
Justice Maraga had, however, asked courts handling election-related matters to convene.
“I was told that being a public holiday, the case will not proceed. We were advised to pick another date from the registry,” he said.
ODM had appealed against a decision of the High Court that allowed the electoral agency to include the other presidential candidates in the election.
Mr Havi said because he was also appearing together with other Nasa lawyers for the case that was to be heard at the Supreme Court, he personally went to the Court of Appeal to confirm and found it was closed.
Meanwhile, earlier on Wednesday, as the country waited for a decision on Thursday’s election, only Chief Justice Maraga showed up and apologised to litigants and lawyers and told them the hearing could not proceed because of a quorum hitch.
He explained that Judges Smokin Wanjala, Philomena Mwilu, Mohammed Ibrahim, Jackton Ojwang’ and Njoki Ndung’u were all unavailable and only he and Justice Isaac Lenaola were available.
In a statement issued later in the evening, the European Union Election Observation Mission described the failure to raise the quorum as “unusual”.
The mission said the court’s inability to hear the case raised serious questions about due process and the opportunity for remedy.
The net effect, the statement said, might undermine the credibility of the election.
“The lack of a quorum is highly unusual for a Supreme Court hearing and has raised serious questions among Kenyan stakeholders, including about possible political interference,” the statement read.
The EU observation mission said it would have been much preferred for the court to have an opportunity to rule on the case, in line with the Constitution and before the election.
Similar sentiments were raised by Nairobi-based Western envoys.
The case had been certified urgent by Mr Maraga on Tuesday who had directed the three applicants – Mr Khalef Khalifa, Mr Samuel Mohochi and Mr Gacheke Gachuhi – to serve the documents to the Independent Electoral and Boundaries Commission (IEBC) and its chairman Wafula Chebukati by the end of the day.
He directed the case to be heard on Wednesday despite it being a holiday.
“Not hearing this case has de facto cut off the legal path for remedy.
“Courts have a fundamental role in adjudicating disputes in electoral processes and, in so doing, providing access to remedy in case of problems or disputes.
“Access to legal remedy is a fundamental right enshrined in the Constitution and international law,” the EU mission’s statement added.
At the Supreme Court, one of the issues talked about was the shooting of Deputy Chief Justice Mwilu’s driver the previous day.
This, according to the CJ, meant she was not in a position to attend court.
Mr Maraga also explained that Justice Ibrahim, who has been sick, was out of the country for treatment.
He said two other judges, Justice Ojwang’ and Justice Wanjala, were not able to come to court. He however did not state where they were.
The CJ also said Justice Ndung’u was out of Nairobi and had been unable to catch a flight back to the city in time for the hearing.
Article 163 (2) of the Constitution states that the Supreme Court will be properly constituted for purposes of any hearing if it is composed of five judges. The CJ said, regrettably, the case would be adjourned to a later date to be taken at the court registry.
Nasa lawyers James Orengo and Dr John Khaminwa described the lack of a quorum as a deliberate move and “neither coincidence nor accident”.
Jubilee lawyers Fred Ngatia and Tom Macharia also said they were ready for the hearing of the case.
“We had put in our papers ready for the hearing,” Mr Macharia said.
But then came the judgment by Justice Odunga stating that the appointment of county returning officers and their deputies was irregular because political parties were not consulted 14 days before the appointment was made.
Although the judge declined to quash the Gazette notice, IEBC rushed to the Court of Appeal on Wednesday evening and managed to have the decision suspended.
The court convened late in the evening and issued orders “to avert a constitutional crisis”.
The three judges faulted Justice Odunga’s decision saying that, in their view, the Constitution did not expressly give the courts the power to alter the election date.
“Thus, a decision of the court regarding the holding of a fresh presidential election had to be in conformity with Article 140 (3) of the Constitution.
“The 60 days stipulated under Article 140 (3) is sacrosanct and a decision having the effect of altering the stipulated date, would not only be unconstitutional and thus invalid but it is likely to plunge the country into a constitutional crisis leading to anarchy,” the judges said.
According to Justices Erastus Githinji, Martha Koome and Fatuma Sichale, they had to suspend the High Court decision considering the complexity and enormity of the matter under consideration.
“How possible was it for the president (of the Court of Appeal) to mobilise judges to hear the case that fast. It was a public holiday like we had been told earlier,” a lawyer who asked not to be named because he did not want to antagonise the judges of the court said.
The Judiciary has been under pressure since it annulled the presidential election on September 1 and ordered a fresh one.
President Uhuru Kenyatta, Deputy President William Ruto and other top Jubilee leaders labelled the Supreme Court judges who gave the majority ruling as “wakora” (crooks).
Earlier, the Judiciary had complained that their security had been scaled down, a claim the police denied.
The International Development Law Organisation (IDLO), a not-for-profit group that funds part of the Judiciary’s operations, was also targeted and its operations ordered closed for supposedly influencing the judges.
The letter by NGO Coordination Board chief executive Fazul Mahamed however seems not to have been delivered to IDLO.
Several petitions have also been filed against Supreme Court judges at the Judicial Service Commission in relation to the presidential election petition, apart from what amounted to character assassination on social media with claims of bribery and personal relationships with opposition leaders.
As it faces the possibility of another round of a presidential petition and election-related cases, all eyes remain on the Judiciary: Will it stand firm or buckle under pressure?
Quorum hitch hits Supreme Court.