Chief Justice David Maraga has told of the immense pressure the Supreme Court judges faced before and after the September 2017 decision overturning the presidential election.
In an exclusive interview with NTV, Mr Maraga said the comments made about the court and the judges after the decision had shocked him, even as he vowed to have “fidelity to the Constitution”, repeating the famous line he made before throwing out President Uhuru Kenyatta’s re-election in the August polls.
“I have been condemned and vilified, but in my heart, I know what I did is what I was required to do,” Mr Maraga said, in reflection, almost a year after the decision—the first in Africa, and only the fourth in the world.
It was a decision that President Uhuru Kenyatta termed as one of “some six judges going against the will of the people”, a move he said must be revisited, and a threat which, a year later, Mr Maraga does not think will shake him.
“I do not think I will be serving this country well in my position if I am serving under fear. I should stand up, and say ‘this has not been done well, let us change it’,” Mr Maraga said.
The CJ gave a long answer on why he thinks analysts, and by extension President Kenyatta and the Jubilee Party, were wrong in vilifying the court for annulling what was billed as the most competitive poll “just because of irregularities,” with many wondering why the integrity of the final tally was not taken into account.
“Irregularities were part of the reason why we annulled the presidential election, but the main reason we made this decision was that there was no transparency in the way the results were transmitted,” he said.
Mr Maraga suggested in the interview that the electoral commission could have escaped the nullification of the results if they had sorted out their network issues, and as per the law, transmitted all its results electronically.
“We were told of network… and that was not true, and they know it. How can you talk about no network in Kisumu town, or here in Kiambu?” Mr Maraga, who was interviewed at his Karen home, asks.
Two days to the poll, the Independent Electoral and Boundaries Commission (IEBC) released a list of 11,155 out of 40,883 polling stations that it said had no network, and will not relay results electronically as required.
“In the second round, there was (full) electronic transmission. What made the difference?” the CJ posed, adding, “The IEBC did not just do its job properly.”
Mr Maraga, his deputy Philomena Mwilu, and justices Smokin Wanjala and Isaac Lenaola, rendered the 4-2 majority decision in which Justices Njoki Ndung’u and Prof Jackton Ojwang’ dissented.
“No election is perfect and technology is not perfect either. However, where there is a context in which the two Houses of Parliament jointly prepare a technological roadmap for conduct of elections and insert a clear and simple technological process with the sole aim of ensuring a verifiable transmission and declaration of results system, how can this court close its eyes to an obvious near-total negation of that transparent system?” the judges had ruled.
President Kenyatta’s Jubilee Party had wondered aloud how they had won 175 of 349 MPs, 37 of the 69 Senators, 27 of the 47 governors, and at least 800 of the 1,450 elected members of the county assembly, and still “lost” the presidential poll “just because this form, or that form was not signed.”
If the Supreme Court had not nullified the election even after finding that there was no transparency, Mr Maraga said, “we will be rightly blamed if skirmishes were to occur.”
On the “revisit” comment made by President Kenyatta, Mr Maraga appeared to have taken it in his stride.
“When I reflected, I understood it to mean that this was talk from the shock of the decision, and at the spur of the moment,” the CJ said, adding that he has since had a talk with the President over “disobedience of court orders by the Executive” that he said must be rectified.
Citing “illegalities and irregularities”, the Supreme Court said that the electoral commission had failed to conduct the poll in accordance with the Constitution.
It is a decision, the four judges said in their detailed judgment, that they will render again “as long as the Constitution has the provisions granting this court the mandate to overturn a presidential election in appropriate circumstances.”
In the interview, Mr Maraga referred to another “revisit” talk, this time from the National Assembly that he suggested could be the reason behind the trimming of the Judiciary’s budget from the Sh31 billion they had requested to Sh17.3 billion, with a paltry Sh50 million for development.
The budget cuts, the CJ said, will lead to the stalling of 70 projects, halt of plans to hire 990 judges, adding, “plans to clear all cases above five years old by December 2018 will be “a mirage and will “immensely affect the discharge of justice”.
He also fingered the Treasury, which he said had not tried hard enough to extend to December 2020 a World Bank programme to build courts, and the delay of the implementation of the Judiciary Fund—which will give it financial autonomy, and allow it at least 2.5 per cent of the revenue.
“We have given requests for the Treasury releases, and one month down the line, it has not been honoured, then you are told you are not absorbing; how do you absorb what they are not paying?” Mr Maraga asked of the rebuttal by the Treasury that the cut was partly because of poor absorption.
He told of how “the Judiciary is at the mercy of the Treasury”, and how it had become embarrassing to host delegations at his office because “there is no decent, respectable washroom.”
Judges, he said, have to get out of their offices to access the critical infrastructure.
“Here is where a CJ calls Treasury, and no one is picking my calls. What else am I expected to do?” an angry Mr Maraga asked.
He rubbished as unfair defence that “Kenya had borrowed too much” to disallow its deal with donors such as the World Bank, observing that “Parliament has borrowed money to build the Senate, and its offices, so what are you talking about?”
In the extensive interview, the CJ also talked about graft allegations in the Judiciary, calling on all agencies to present evidence.
“If I was taking bribes, and the criminal investigations, and the intelligence team are not able to know that, then we should be worried about the country we are living in . . . so if they have evidence of compromise, I’ll be the first to embrace it,” he said.
The CJ said he has directed that all graft-related applications to be done at the High Court Anti-corruption and Economic Crimes Division to avoid confusion.