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Koome choice of words that sank Raila's hopes of being president


Chief Justice Martha Koome during presidential election petitions on September 05, 2022. [Samson Wire, Standard]

A string of searing adjectives doled in quick succession by Chief Justice Martha Koome sank Azimio presidential candidate Raila Odinga's hopes of becoming the fifth president of the country, long before the final verdict was given.

On a day when counsels who only last week ruled the courtroom meekly nestled closely on the cold benches awaiting their clients' fate, Koome set out to serve it raw and cold.

A few minutes after noon, the appointed hour, a smiling and composed Koome took her seat, to address not just the lawyers but an expectant nation.

"Kenya is a sovereign multiparty democratic state whose foundations are firmly spelt out in the constitution," she opened up the judgment, almost echoing the preamble her predecessor David Maraga gave in 2017 shortly before he toppled over President Uhuru Kenyatta's win.

"The greatness of any nation lies in its fidelity to the Constitution and adherence to the rule of law and above all respect to God," Maraga had stated.

But if this intro gave hope to Azimio which sought to overturn President-elect William Ruto's win, they were gravely mistaken. As soon as she set out to consider the issues one by one, it dawned on all that things were headed south.

The first nail on the petitioners' coffin was the matter of technology. Koome said the Supreme Court judges were not persuaded that technology failed the requirement of the law. And neither did the scrutiny undertaken on sampled polling stations reveal any major breaches.

The second nail hurt the most, for it silenced the main source of hope for the main petitioner. On the last day of the petition hearing, Counsel Julie Soweto had sensationally unveiled Jose Carmago, a Venezuelan, as the man who staged Ruto's win and denied Raila his victory.

"This turned out to be no more than hot air and we were taken on a wild goose chase that produced nothing of probative value," she said of Soweto's "bombshell" that lit up the country.

There was no man in the middle of the server, Koome ruled. Some of the statements made to this effect were "outright forgeries."

There were also "no significant differences" between forms uploaded in the portal and original ones inspected by the court. Koome also sought to dole out "elementary learning" on the matter of affidavits to the benefit of Azimio lawyers.

Hearsay evidence

She described the affidavits sworn by Arnold Odinga and Celestine Opiyo as sensational and not credible. John Mark Githongo's affidavit was dismissed as a "forgery" and "incredible and hearsay evidence."

Commissioner Justus Nyang'aya log-ins were found to be "of no probative value." Opiyo and Odinga's affidavits particularly irked Koome's team. She described them as not only "inadmissible but also unacceptable" since the pair were not agents, and could not have deponed on matters they had zero clue about.

As a result, the court took serious issues with the lawyers who commissioned them, saying her court would not "countenance this" and reminding them of the criminal offence of perjury. But beyond perjury, there was even a bigger issue for the lawyers involved:

"One of the most serious losses for an advocate of the court is the loss of trust by the judges for a long time," she said, in a veiled warning to lawyers involved.

Azimio's claim on voter suppression through postponement of the election was decreed "another red herring." No bad faith was demonstrated on the part of IEBC.

Of the discrepancies alluded to by Azimio side, "not a single document" was provided to prove them, earning it the term "unproven hypothesis."

As to the legitimacy of the declaration made by chair Wafula Chebukati as opposed to the majority four commissioners who walked out of Bomas, Koome's court reserved choice words.

She talked of "unexpected drama" that ensued in Bomas, the helplessness Kenyans were thrust into having to watch "appalling split-screen scenario", the "serious malaise" eating into the commission's corporate governance and the "stoic silence" of the chairman in the midst of things falling apart."

They also reiterated the "last minute boardroom rapture" initially alluded by IEBC lawyer Abdikadir Mohamed, recalled that all commissioners "took turns" to read results, decried the last minute "opaque" declaration by four commissioners on the lawns of Serena, and declared that IEBC required "far-reaching" reforms.

"How can we upset an election in which people have participated without hindrance to this drama and expose the will of the people to quorum antics of IEBC? This we cannot do!" they posed.

The judges faulted the petitioners' arithmetic which implied Ruto did not receive 50 per cent plus one vote decreed by the law. By the time the decision was over, the petitioners had lost in all the issues identified by the court for determination.

It was therefore not surprising that no sooner had the final orders been made, of course dismissing the petition, than IEBC lead lawyer Githu Muigai sprang up to thank the bench on behalf of the bar. Lead petition lawyer James Orengo was not amused.

"I didn't ask him to speak for me. Next time he should consult widely," Orengo lightly intervened, thanking the court for a "worthwhile journey" and the judges' patience.

Express gratitude

Orengo opened the way for other counsels to express their gratitude to the court. Lawyer Stephen Mwenesi vouched for space for Law Society of Kenya President Eric Theuri, who was also celebrating his birthday, to speak on behalf of all lawyers.

Theuri, however, declined to take up the role before his senior, Ruto's lead lawyer Fred Ngatia spoke. Ngatia ended up rubbing it on opponents, saying he was looking forward to "a less corrosive 2027."

Counsel Zehrabanu Janmohamed apologised to the court for any untoward conduct which may have been displayed by lawyers in the course of the hearing, saying they "sometimes looked like hooligans." Senior Counsel George Oraro hoped this would be the last of petitions going forward.

When he finally took his place, Theuri thanked the bench for the invaluable lessons picked in the course of the petition but joked that if Oraro's wish came to pass and petitions ended, his members would suffer losses.

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