Maraga and EACC lock horns in 2017 election petition investigation

Chief Justice David Maraga. EACC is accusing him of blocking it from investigating the Supreme Court Registrar. [File, Standard]

The anti-corruption agency has criticised Chief Justice David Maraga for issuing orders blocking investigators from pursuing Supreme Court Registrar Esther Nyaiyaki.

Yesterday, Ethics and Anti-Corruption Commission (EACC) Spokesman Yassin Amarrow said investigations that the agency was conducting on Ms Nyaiyaki failed after Justice Maraga issued “unachievable conditions” to the investigators.

A joint investigations team comprising officers from the EACC and DCI had summoned Nyaiyaki over allegations of doctoring a report, which the Supreme Court used to nullify the 2017 presidential election.

The Supreme Court Registrar is said to have prepared the documents that the majority judges used in their ruling.

Amarrow said, “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.”

He however declined to comment on the status of the investigations, almost two years after the investigations were opened.

Supreme Court registrar Esther Nyaiyaki receives NASA presidential Petition at the Supreme court yesterday on 18th August 2017.[Edward Kiplimo,Standard]

When asked for a comment, Judiciary Spokesperson Catherine Wambui asked the Sunday Standard to send her an email, which she was yet to respond to by the time of going to press.

The revelations come at a time when Director of Public Prosecutions Noordin Haji and Director of Criminal Investigations George Kinoti have put the spotlight on the Supreme Court, demanding the removal of Deputy Chief Justice (DCJ) Philomena Mwilu by the Judicial Service Commission (JSC).

Haji has presented a petition to the JSC, claiming that Mwilu is unfit to hold public office after she was allegedly involved in a criminal matter.

The Sunday Standard has also obtained fresh details into the behind-the-scenes courtroom proceedings and at the Independent Electoral and Boundaries Commission (IEBC). Senior counsel Paul Muite and former IEBC CEO Ezra Chiloba in statements to the police, claimed the documents used by the judges were fake and not those that the IEBC had forwarded to the top court.

Key documents

Muite said the documents presented to the judges and which they relied on in their judgement, were falsified.

“In regards to the persons I have adversely mentioned in my statements, these are individuals whose conduct raised suspicion on their lack of independence and partisanship.”

“My inference is that they or at least some of them may have had a hand in the falsification of the forms,” Muite told the investigations team.

He recorded his statement on November 10, 2017.

Chiloba, who also recorded statements with the police, denied that there was hacking of the IEBC servers as alleged by NASA lawyers in court.

Chiloba said in regard to the report presented to the court, “…I have reason to believe that the report does not reflect the true picture of the state of our records.”

He recorded his statements on October 3, 2017 at the IEBC head offices at Anniversary Towers.

The Supreme Court annulled the election victory of President Uhuru Kenyatta and ordered a repeat of the 2017 presidential poll, following a successful petition by NASA.

An angry President Kenyatta, reacting to the court ruling, vowed to “revisit” the matter.

Yesterday, sources at the DCI and EACC said the investigations collapsed owing to the political tensions witnessed in court at the time.

The investigators were of the view that the probe was likely to be seen as a political witch-hunt.

“There was too much political noise across the political divide. The thinking was that the investigation be suspended until the political noise drowns,” said a senior DCI investigator who requested anonymity.

The investigations had split major organisations, including the Law Society of Kenya (LSK).

Then LSK Chairman Isaac Okero was of the view that the EACC violated the Constitution and called for an end to the probe.

Okero said the investigations amounted to an attack on the independence of the Judiciary and that the EACC had no authority to conduct the probe.

Then LSK Vice Chairperson Faith Waigwa held a contrary opinion to that of the chairman. Waigwa dissociated the LSK from the position by Okero, saying the views expressed were not a representation of the LSK’s but Okero’s personal views. Former Prime Minister Raila Odinga opposed the investigations.