A Supreme Court judge has for the first time revealed the
behind-the-scenes activities that preceded their decision to rule in
favour of Mr Uhuru Kenyatta as Kenya’s fourth President.
As
tension and anxiety gripped the country, Supreme Court judges led by
Chief Justice Willy Mutunga retreated to a secret location where they
made the unanimous decision that Mr Kenyatta had won the election
fairly.
“We had sleepless nights and anxious moments.
At one point we went for a retreat somewhere. I will not tell you where
but just know that is what happened. It was very demanding and
difficult for the six judges since we barely had five days to make a
ruling,” said Mr Justice Mohammed Ibrahim.
Speaking at
an exclusive motivational talk dubbed “Breakfast with the Coach”, a
quarterly motivational talk organised by Purpose Centre Church, at Ole
Sereni Hotel in Nairobi, Justice Ibrahim said the unanimous decision was
based on evidence and figures presented before them.
“People
ask how we did it. How was it unanimous? Election petitions are very
simple. It’s about evidence and figures. It’s as straight as that.
Although you must consider the responsibility bestowed and the
sensitivity involved but on a matter of law in was straight-forward,”
said Justice Ibrahim, who was one of the guests at the talk last Sunday
The election dispute ended up at the Supreme Court after Cord
Presidential Candidate Raila Odinga challenged the results of the March 4
poll. Mr Kenyatta won with 6,173,433 votes against Raila’s 5,340,546.
The
Supreme Court headed by Dr Mutunga ruled on March 30 that President
Kenyatta was “validly elected in a free, fair, transparent and credible
election.”
Justice Ibrahim, who talked about his life story, said it was a challenging time for the Supreme Court judges and Kenyans.
“After
March 4 elections, Jubilee coalition won and the Independent Electoral
and Boundaries Commission (IEBC) declared them winners, it was a very,
very difficult period. For the first time, I was being involved in a
presidential petition and coincidentally, the chairman of IEBC was at
one time my partner at a law firm. Some people thought that we did
something (to influence the ruling),” said the judge.
Mr
Isaak Hassan is the chairman of the IEBC, which Mr Raila’s Cord
coalition had accused of rigging the election in favour of Mr Kenyatta.
Justice
Ibrahim said the petition came at a time when the Supreme Court had
been reduced to six judges following the sacking of then Deputy Chief
Justice Nancy Baraza for misconduct. She was replaced by Justice Kalpana
Rawal in April.
He said this was a gamble on the part
of the government because with an even number of judges sitting on the
bench, there was a possibility of a stalemate.
“The
purpose of having seven judges was not an accident. It was an issue of
having an odd number so that there is no stalemate. So you can imagine
six judges making a ruling. This was very, very risky for the country.
Supposing we had returned a 3-3 decision or something like that? Anyway
that was not the reason we decided the way we decided because I am here
telling you for the first time that it was on merit and we have no
apologies to make,” said Justice Ibrahim.
The judge
said that time had “stood still” for the judges because out of 14 days
stipulated by the Constitution, they had only five days to review the
petition and make a ruling.
“There were only 14 days
for the petitioner and respondents to file a petition and serve the
other party who were to respond within a specific period. We barely had
five days to hear the case and make a ruling and that was a very
challenging time in my life,” said the judge, who was detained without
trial during the Kanu regime for fighting for a democratic Kenya.
“As
a supreme court, we had nothing (interest) in the case. We stand by our
decision. We believe in it. It was based on law,” he said, adding that
contrary to claims by some Kenyans, the Supreme Court was not divided.
The
issue of divisions in the Supreme Court was fuelled by claims from Mr
Odinga to journalists during his concession speech that he had prepared a
victory speech but had quickly drafted another one after his case was
struck out.
Justice Ibrahim told politicians to “plan and win elections at the ballot box” instead of depending on the courts.
“If
you want to win an election, win it at the ballot box. Do not come to
court. Why should 14 million Kenyans be put through that problem
(registration and voting), then you want six or seven people to decide.
Who are we?,” posed the judge, who called on Kenyans to review the
constitution to improve it.
“I believe in our
Constitution. It is a good Constitution but when emotions go down, we
can make some amendments. There are things that we might need to change.
Among them the number of judges and aspects on devolution,” he said.
Amid laughter from the gallery he said: “Look the Senate and Parliament have also come to us to determine their problems.”
Justice
Ibrahim’s disclosure is the first report on the goings-on at the
Supreme Court as Kenyans and the world awaited the outcome of Mr
Odinga’s petition.
Other sources told the Saturday
Nation that Dr Mutunga had divided the various issues raised in court
among the six judges and each asked to make an independent decision.
The judges then converged and each was asked to make a presentation of their findings, after which they agreed on the verdict.
The Saturday Nation
has also independently learnt that the judges had booked three
different hotels but had eventually settled on Windsor Country and Golf
Club as their preferred venue for the retreat.
The
actual one-page ruling was written and signed by the six judges only
about 30 minutes before the decision arrived at that morning and
officially communicated on March 30.
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HOW IT ALL HAPPENED
IEBC
declared Mr Uhuru Kenyatta the fourth President of Kenya on March 9.
Uhuru won the election with 6,173,433 votes against Raila’s 5,340,546.
He surpassed the constitutional required of 50+ 1 vote required by 4,100
votes which saw him get 50.07 per cent of the votes. Mr Raila Odinga
protested that the elections was rigged.
He petitioned
the Supreme Court. Other than Ibrahim, Supreme Court judges who ruled
on the case were Chief Justice Dr. Willy Mutunga, Justice Philip Tunoi,
Justice Jacton Ojwang, Justice Smokin Wanjala and Justice Njoki Ndungu.
Raila was represented by Mr George Oraro while Uhuru and Mr Ruto had Mr
Fred Ngatia and Mr Katwa Kigen respectively.
IEBC
chairman Mr Isaak Hassan had Mr Ahmednasir Abdullahi while IEBC had a
team of lawyers led by Mr Aurelio Rebello and Mr Mohammed Nyaoga.
The
Supreme Court rejected Mr Odinga’s 900 page petition on grounds that it
was time barred. The first issue that was determined was whether then
President elect Uhuru Kenyatta and Deputy President elect William Ruto
were validly elected.
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