A night of long knives, a missing star lawyer and stubborn judges who wouldn’t relent.
This is the sum of the intrigues that preceded the historic Supreme Court decision invalidating Kenya’s August 8 presidential election.
On the morning the court delivered its decision, one of the star lawyers for one of the respondents was missing from the courtroom.
Unable to come to terms with losing the case after deploying all his wits to the defence, he did not show up alongside his political associates.
In contrast, the petitioner’s lawyers literally swung into the courtroom, their benefactors in tow, beaming with pregnant smiles. The court’s decision had somehow leaked to boardrooms the night before.
“We knew we were done in by Thursday evening. There was no point (of turning up at Supreme Court),” a Jubilee operative who participated in the process and who kept off the court told Sunday Standard.
At a city hide-out hotel on Thursday night, weary judges switched off their phones to ward off stray calls from influencers and operatives of the parties after braving them for hours. One of them is said to have faced off with a delegation sent out to appeal to their mercies and told it off in no uncertain terms.
Initial reports indicate that of the six judges in the conference, a pair had already made up their minds to uphold the election while two were determined to invalidate it. The two undecided eventually spread themselves even, leading to a 3:3 situation. But not for long.
In what lawyers in the petition attribute to lobbying by colleagues but denied by those who were present, one of the judges switched sides on conscience grounds to support the invalidation of the election.
The Chief Justice, it is said, had initiated the “vote on conscience” movement which afflicted his deputy and spilled over to two colleagues. At the vote, the judges were also weighed down by criticism of the court’s 2013 verdict.
Three of the four majority judges who invalidated the election — Chief Justice David Maraga, Deputy CJ Philomena Mwilu and Justice Isaac Lenaola — are new recruits from the 2013 bench.
The other judge Justice Smokin Wanjala sat in the 2013 petition.
As the clock struck midnight, the minority judges began writing their dissenting briefs.
The majority judges also concluded their small brief and began to worry on the impact of not delivering the full judgment the following day.
On the morning of the judgment day, Maraga spoke to their ill colleague Justice Ibrahim Mohamed to inform him of the decision and to wish him well. Ibrahim had been taken ill earlier in the week.
When he walked into the courtroom 21 minutes past 11 with his colleagues, Maraga found a tense-packed atmosphere.
Siaya Senator and NASA lead counsel James Orengo happily introduced his team, reading them one by one in line with the tradition of the court.
In contrast, lawyers for the respondents appeared subdued, so much so that Independent Electoral and Boundaries Commission (IEBC) lead counsel Paul Muite attempted to skip introducing his colleagues on account of saving time.
“The first and second respondents are represented by the same team of lawyers whose names you have on record already. I think in the interest of saving time....” Muite said before he was stopped on his tracks and ordered by the CJ: “Read them out.”
He proceeded to look out for the list and to read them aloud as ordered. Ahmednasir Abdullahi for President Uhuru Kenyatta also introduced his team and announced that his colleague Fred Ngatia would be joining them later.
“Before I read the determination, I want to say this. The greatness of a nation lies in its fidelity to its constitution and its strict adherence to the rule of law, and above all, the fear of God,” Maraga signalled the events of the day.
Other reports painted the picture of judges under immense pressure, fall out among legal teams involved in the process and disappointment with a section of the bench. The strong disapproval of the judges by President Kenyatta in his Burma market roadside address exposed the latter.