By Kenya Confidential Political Editor, Nairobi – July 6, 2019
Chief Justice David Maraga is desperate to frustrate investigations into how the Supreme Court
Maraga has been put on the spot by the Ethics and Anti-Corruption Commission (EACC) and the Directorate of Criminal Investigations (DCI) for issuing orders blocking investigators from pursuing Supreme Court Registrar Esther Nyaiyaki.
A joint investigations team comprising officers from the EACC and DCI had summoned Nyaiyaki over allegations of tampering with electoral documents and doctoring a report; which the Supreme Court used to nullify the 2017 presidential election.
The document falsely claimed that some electoral forms were not signed by IEBC Returning officers and quoted affidavits which were also false
The EACC Spokesman, Yassin Amarrow told the media that investigations that the corruption agency was conducting on Ms Nyaiyaki stalled after Justice Maraga issued tough conditions to the investigators. Magara is determined that the truth never comes out and could destroy it all together by the time he leaves.
He has issued an order the EACC and DCI should obtain an order from the Supreme Court in order to interrogate the Supreme Court Registrar. In other
If Maraga has nothing to hide arising from the Supreme Court majority decision, why would he bar EACC and DCI from interrogating the Registrar? Why. would he ask the two agencies to seek permission from a Court he knows will not grant the order?
The Supreme Court Registrar prepared the documents that the majority judges used in their ruling. The Supreme Court’s registrar had assembled a team of experts to physically examine the 34A and B forms that the electoral commission claimed to have used to arrive at the final results.
According to their analysis, scores of 34B forms have irregularities—many lack official stamps, serial numbers, and watermarks. Many 34As appear to have similar problems. According to an affidavit submitted in support of NASA’s petition, some are signed in the same handwriting, some come from polling stations that didn’t officially exist, and some show results that differed from the totals on the copies of the form in NASA’s possession and from the totals announced by the electoral commission.
When a NASA IT team examined the logs of the electoral commission’s server, it alleged it found that numerous unauthorized users had entered the system before and after the election, that the electoral commission chairman had uploaded and removed 34A forms, and that some polling center results had been added before the election had actually occurred.
“The file is still open but we failed to proceed after the Chief Justice asked us to obtain a court order from the Supreme Court, which is impractical.” Amarrow claimed.
He however declined to comment on the status of the investigations, almost two years after the investigations were opened. Judiciary Spokesperson Catherine Wambui, refused to comment on the issue.
The Supreme Court annulled the election victory of President Uhuru Kenyatta and ordered a repeat of the 2017 presidential poll, following a fraudulent petition by NASA and an equally flawed judgement. The majority judgement annulled the election on the basis of unsubstantiated “illegalities and illegalities”.
The sentiments by the EACC spokesman coincided with Director of Public Prosecutions Noordin Haji and Director of Criminal Investigations George Kinoti putting the Supreme Court on spotlight, demanding the removal of Deputy Chief Justice (DCJ) Philomena Mwilu by the Judicial Service Commission (JSC).
Haji has presented a petition to the JSC, declaring that Mwilu is unfit to hold public office after she was allegedly involved in a criminal matter. She also featured prominently in the subversion of justice along with her boss Maraga and other Supreme Court judges to defeat the will of the Kenyan voters in 2017 and causing the country to waste billions of shillings in a repeat election.
A five-bench Court last month dismissed Mwilu’s Corruption charges prosecution on the basis that evidence of her bank accounts were obtained illegally. They did not reveal where and when the evidence of how the records of the accounts was adduced since Mwilu had not pleaded to the charges.
The reputation of the Supreme Court has been waning since its annulment of the presidential election in 2017 touted as the first such decision in Africa. However, the decision was not unanimous.
In one of the Court’s most comprehensive and compelling Judgements, Justice Njoki Ndungu repeated time and again, that the will of the voter is supreme and in the absence of evidence, a Court must not interfere with the people’s choice.
In a lengthy dissenting judgement, she analysed the entire body of evidence deposited in Court by the IEBC on 20thSeptember, 2017, 48 hours after the Petition was filed against the allegations by Raila Odinga and noted that the Forms used to declare the elections were all proper in Form and Content and the Majority did not therefore have a basis to overturn the election of President Uhuru Kenyatta.
Justice Njoki faulted the Majority judges on several things:
- Not using the certified Forms filed in Court by the IEBC to verify the allegations made by petitioner Raila Odinga.
- Assuming that since there were more votes cast in favour of the President compared to Governors and Members of Parliament, that the IEBC had interfered with the result of the Presidential elections. She informed the Majority that the law allows a voter to cast only one ballot so long as the unused ballots were kept aside in tamper proof envelopes. A voter is not under any obligation to vote for all the six candidates in an election.
- Finding that the IEBC refused to obey the Orders of the Court to avail technology yet, the Orders of the Court were very clear that the IEBC was expected to provide a read only copy of the logs in the servers (with an option to copy).
- Deliberately overturning a previous decision of the Court on section 83 of the Elections Act to favour a finding of nullity.
- Invalidating proper Forms on the basis of an exercise whose findings were not in conformity with the Forms filed by the IEBC in Court.
The judge considered the role of the Supreme Court in hearing a presidential election petition and noted that it was mandatory for the Court to make its determination only after thorough and proper consideration of the evidence, She was of the view that the Majority proceeded with the determination of the case akin to a Court sitting on Appeal. The majority had no reference to the primary evidence filed in Court soon after the Petition, which proved that the election was free and fair.
In her opinion, Kenya’s electoral system is primarily manual with a complementary mechanism of technology. Therefore in the areas that were not covered by 3G and 4G Network (11,000 polling stations), manual transmission of results was the proper mode of result transmission. She recommended a legislative reconsideration of the electoral law to clarify that technology is secondary to the manual transmission system.
She also explained the verification process in elections and indicated that there are various agents of verification including the IEBC, observers, the media, the public and the election court (any Court hearing an election petition). Therefore lack of security features or signatures from agents was not, by itself a reason to invalidate the election in a scheme of interlocking verification mechanisms.
Nevertheless, she conducted a comprehensive analysis of all the 291 Forms 34B and the disputed Forms 34A and noted that the Forms were proper and where there were omissions, the same could not affect the result of the election. She emphasised that where the Court was in doubt, inspection of the ballot was essential.
In any event, she was of the opinion that the Court had powers to inspect other election material to verify the integrity of the elections. There was a verifiable paper trail which the Court could use to verify the various allegations and which was not used. The effect of the Judgement was to deny Kenyans their right to franchise.
Justice Njoki took issue with a part of the Majority that threatened to nullify a repeat election if the same errors occurred. Her view was that all the arms of government are reinforcing of each other and the Supreme Court as part of the Judiciary should not threaten parties with the prospective likelihood to appear before it in the future.
The result of the election was never in issue and the same was not shown to have been affected by the alleged irregularities or illegalities.
In her assessment, President Uhuru Kenyatta was properly and validly elected as the President.
Maraga may have prevailed on the nullification of the 2017 presidential polls because he believes that the Law in Kenya is skewed to benefit business dynasties and tenderpreneurs who influence Presidential Election. However the nullification of the polls