Demeaning abuse of our Laws by the Supreme Court a recipe for Chaos

22 mins read

I really didn’t expect much from the Supreme Court issuing their verdict three weeks after they gave William Ruto the presidency.

Every time they do this kind of game as they did in 2013 it tells everyone that the Supreme Court judges have made their ruling on whatever interests they have and they need 21 days to invent some justification for that ruling.

The Martha Koome Supreme Court invention for why they gave the presidency to someone who most likely lost the election is so bogus it is hard to read it.

Number one.

The single most critical issue in this case which was presented before the courts several times is that the IEBC chairman usurped the powers of IBC commissioners and became a one-man returning officer for the IEBC.

A role he cannot play because of the previous Court of Appeal ruling in the Maina Kiai case against the electoral body.

“Unless a Unanimous decision is reached, a decision of any matter before the Commission shall be my a majority of members present and voting.

We reiterate as we conclude that there is no doubt from the architecture of the laws we have considered that the people of Kenya did not intend to vest or concentrate such sweeping and boundless powers in one individual, the Chairperson of the IEBC.”

You don’t need to be a lawyer to understand that this ruling by the Court of Appeal in Kenya which Chebukati never took to the Supreme Court to appeal the decision, makes it very clear that the entire IEBC group of commissioners needed a majority vote to accept the results Chebukati wanted to announce.

There were all seven of them at the tallying center. Four of those commissioners not only rejected the results but also went public about their reasons for doing so and were present at the Supreme Court to defend their stand.

It is absolutely stunning and illegal that the Supreme Court completely ignored this giant in their midst and is concentrating on the side shows plus technical things here and there to try to justify their atrocity against our constitution.

The Court of Appeal ruling states clearly that “there is no doubt from the architecture of the laws we have considered that the people of Kenya did not intend to vest or concentrate such sweeping and boundless powers in one individual, the Chairperson of the IEBC.”

By this, it is ruling the Supreme Court has unilaterally as seven people changed the “architecture” of our constitution and the IEBC chairman can run the elections as he wishes and is individually responsible to announce the results of our presidential elections.

That is not in our constitution and I would urge the Supreme Court to talk with Ruto and the MPs to amend our electoral laws to give exclusive powers to the chair of the IEBC.

It is unbelievable that the highest court in our country has decided to abuse the law and amend our electoral laws by their ruling for whose interests we do not know. Certainly, this is not in the best interest of Kenyans whoever they voted for.

Kenyans need to know from the Supreme Court and if not go to the East Africa Court whether the IEBC is allowed to do its work and determine election poll results or if that is solely the job of the Chairman of the IEBC.

If we do not need the IEBC commissioners then it should be abolished and we shouldn’t pay them taxpayer money when we expect them to do nothing. During the 2007/8 election fiasco, we had one person running the entire electoral board.

The poor guy’s name is Samuel Kivuitu and in the middle of the chaos, he actually said he does not know who won the presidential elections. Kivuitu was the chairman of the Electoral Commission of Kenya and after the mayhem of 2007/8 PEV which almost destroyed our country completely, Kenyans decided a one-man show running the elections was a recipe for disaster for Kenyans. That is what led to the birth of the IEBC.

From the Martha Koome Supreme Court ruling, we are back to the one man running the elections again. It is illegal now. Can the Supreme do something to make it constitutional?

The Supreme Court ruling has now given Chebukati and his big bosses running the IEBC like a personal kiosk the opportunity to terrorize and hopefully get Ruto to expel the four commissioners who refused to be part of the fraud. That is ongoing as we speak. Great job Martha.

To cover their asses after making a ruling they know breaks the law the Supreme Court comes up with some redundant recommendations:

“The roles of the chairperson, commissioners, and the Chief Executive Officer, other staff and third parties should be clearly set out in both the legislative and administrative edicts as stipulated above,” the court said.

Do these judges know why we had war in 2007/8 PEV and how it was resolved? You can read that you are lawyers. Once the one-man show of Samuel Kivuitu brought Kenya to its knees the citizens and even the politicians agreed that never again will we have one man run the election and take the country into chaos. That is how the IEBC was formed to end one-man rule in elections.

The ruling by the Martha Koome Supreme Court is to say that never again will a group of commissioners run the election because it will be a one-man show Kenyans saw at Bomas this year in the tallying.

If it is true that the Supreme Court judges do not know the very clear roles of the IEBC chairperson and the commissioners, they should have put those questions to Chairman Chebukati and all the commissioners who should have been invited to present to the court on those matters.

They were all in court the entire time and had signed affidavits that they should have been asked to explain and verify. That wasn’t done. Why?

It seems to me that the reason the Supreme Court judges did not ask the chairperson and commissioners to define their roles as provided for in the constitution is that they were not interested in the answers they were going to get.

What stopped the Supreme Court from asking those questions in court? It looks like the court already made up their minds and the whole hearing was a formal waste of time. Hopefully never will we see this level of incompetence and possibly corruption in our Supreme Court again.

How do you make a ruling of this magnitude when you don’t even know the roles of the key parties involved? Shouldn’t that have been the first thing for the court to sort out?

That role was defined in the Court of Appeal ruling in the Maina Kiai case and every member of the Supreme Court has read that ruling.

If this Supreme Court wants to change the roles of IEBC commissioners, they need to ask for a constitutional amendment complete with public participation and see if Kenyans accept the verdict that the IEBC chairman can run the election as his personal property. That he can ignore any commissioners who disagree with him even if they are the majority.

That is what this ruling has done and the judges should stop hiding behind unnecessary recommendations. The Supreme Court exists to interpret and make rulings on existing laws not to make or suggest any new laws that suit their rulings and interests at the time.

Do your job and let other institutions do their jobs. You can’t make laws and pass judgment on the same.

The most outrageous recommendation from the Supreme Court is their advice to the IEBC to hide the servers from other parties including presidential contestants and limit access to their servers to only their staff.

Simply put, the Supreme Court is telling the IEBC to find more efficient ways of rigging presidential elections so that the court doesn’t have to clean their mess after they rig the elections. What a wonderful recommendation for the good of the country. These judges should be ashamed of themselves for making such a hideous recommendation.

The other issue Kenyans will have to face is whether we really need the Supreme Court to help sort out presidential elections, or if it is an element of false hope and a backup to legitimize the rigging business in Kenyan presidential elections. Why should Kenyans place any sensible hope that their Supreme Court will uphold justice in elections when they see a blatantly bogus ruling like this?

It is very dangerous for our institutions like the IEBC and the Supreme Court to push Kenyans to a level where people may begin to ask why voters have to bother with elections at all if their leaders are pre-determined by some institutions.

I have lived through that situation personally and it is very volatile. I was in Tanzania in 1988 as a refugee when Moi carried out the mlolongo elections and many of us got really mad. We ran to Tanzania because Moi was killing our fellow freedom fighters, torturing them, and jailing them. So there were a lot of us in Tanzania under the auspices of the United Nations High Commission for Refugees (UNHCR).

After two years there the UNHCR told Kenyans in the refugee camps that they will be sponsored to leave Tanzania and go to Europe. They told us the place was too dangerous for Kenyans and they cannot guarantee our safety and then started finding countries for us to go to.

Many of us were ready to travel to Europe and North America as exiles but a very good group of Kenyan activists who were also refugees in Tanzania were furious about the idea. They told us they are not going to Europe but are ready to go back to the country and take the battle to Moi directly by all means.

We told them not to start anything adventurous because they are going to get killed. It was a big fight in Tanzania among Kenyan refugees and exiles between those who said they want to take the fight to the ground and those like me who said let’s take no dangerous risks and fight within the human rights movements in Kenya and abroad to bring Moi down even if it takes time.

It took another four years from the 1988 mlolongo nightmare to get Moi to declare Kenya a multi-party state. After that, it took another 10 years to get the dictator out of power.

My point here is that nothing will be gained by driving Kenyans to a conclusion that elections are useless and a waste of time. They will figure out other ways to keep imposters out of power and nobody wants that to happen. We see these things happening in other countries and we should know it is not because they love the chaos but because they don’t have a choice.

Ruto can lie to the youth now about all those freebies but none of that is going to happen. So we can keep Kenyan youth quiet with lies and all that stuff but that can only last for so long. The biggest hope the Kenyan youth need is that they can change the leadership of the country. If they know they cannot get anything going for themselves and they have no hope to have genuine elections and leadership, they are going to think about other things. That is the dialectics of human history as we know it.

The one thing Kenyans need to come to terms with is that the much praised 2010 Kenya Constitution and even the judiciary as a whole have really done nothing for ordinary Kenyans. That Katiba may be good for politicians but I doubt it is good for Kenyans.

The key pieces that were supposed to make our new constitution exemplary and good have not and will never be implemented because the politicians don’t want them and the judiciary is dead on everything. Simple corruption cases take 10-20 years because the big boys have money to throw at the problem.

The single biggest item in the 2010 constitution was Chapter Six which was a tool to be used to bar thieves, murderers, and all kinds of gangsters from holding office in Kenya. So who is holding positions of power in Kenya today? Exactly those that Chapter six intended to remove from public institutions in our country.

Why can’t Chapter Six be implemented?

Because politicians hate it and as we all know their life careers are to be politicians and criminals so they can make a lot of money. Where is the Supreme Court to come out with clear interpretations of Chapter Six and help the judiciary apply it? Nowhere. That is not a priority for them and why would they want to mess around with their important friends in politics? They are not stupid.

Do we even need Chapter Six in our constitution anymore? We can keep it hoping that some forty years from now we will get some reasonable people in the legislature and the judiciary to implement it. Otherwise, forget about it for now.

The other big part of the 2010 constitution which was supposed to reverse massive land grabs all over the country was the National Land Commission which is now officially dead having been used many times to protect land grabbers.

William Ruto himself tried to use the NLC to help him grab the public land for his Weston Hotel and almost succeeded until he was stopped at the Court of Appeal. The matter is now before the Court of Appeal and if I am Ruto I am taking this to the Supreme Court.

The NLC is now too broke to even pay its employees as of this year. All the hopes Kenyans invested in that can now be buried in some land if you have it.

So all the key pieces of the 2010 constitution are dead or dying and I ask my friends who think we should support this constitution: what is left there to support?

We also have to acknowledge that this Supreme Court has also made some very good and legally solid rulings that I for one support wholeheartedly. The Supreme Court stopped the hysteria that the 2010 constitution is “unamendable” and is the new legal Bible in Kenya.

I was saying even the Bible that I know has many versions and I know that because my mother gave my son when he visited her as a young boy something like ten Bibles (which he loves to remember her now) and they are different versions. So the court ruled that the constitution can be amended as long as the right procedures are followed. That was excellent.

Recently the Supreme Court ruled CDF money cannot be run or administered by MPs because it is national money to citizens and it is not the business of MPs to engage in how it is run. That was a great ruling because the CDF as we know it now is simply pocket money for MPs and their families.

Here is the trouble though with that ruling. Right now even the Treasury is trying to use that ruling to hoard the CDF money in their coffers for their own use of course. The real deal is that William Ruto and his MPs are going to come up with a plan and some half-baked new legislation to hand the money right back to the MPs to do whatever they want with it.

This matter is coming right back to the Supreme Court after Ruto and the MPs make their move. There are so many things that could be done to sort this out so the money goes to the citizens who need it but that is another discussion.

Adongo Ogony is a Human Rights Activist and a Writer who lives in Toronto, Canada

Leave a Reply

Your email address will not be published.

Previous Story

Raphael Tuju skips President Ruto’s Cabinet meeting

Next Story

Kiambu, Makueni, Taveta among Ebola virus hotspots in Kenya

Latest from Blog