The first day of 2022 presidential election petition hearings turned out to be sweaty, shaky, voluble and melodious affair for the Supreme Court.
Lawyers gesticulated to the judges, grimaced at opposing sides and some- very lucky ones- sang suckling ditties to unbelieving audience, prompting the judges to lay down the rules.
“Inky pinky ponky,” Lawyer Willies Otieno waxed lyrical, painting the picture of the joke that was the tallying and verification exercise overseen by the Chairman of the Independent Electoral and Boundaries Commission Wafula Chebukati.
With sweat almost drenching his immaculate barrister’s shirt, he quoted his niece and grandmother, before he was stopped in his track by Justice Smokin Wanjala.
“We should not even talk about the numbers, because the process is compromised. Any person inviting you to look into the numbers is leading you to a dark alley. In this election, the people had their say but technology had its way,” he claimed.
Senior Counsel Pheroze Nowrojee was the second counsel to take the stance after James Orengo. He set out slowly in a shaky but assured manner to mash up the electoral commission and the conduct of its chairman.
By the time he was finishing, the Mahatma Gandhi look-alike was agitated to the core, saying the conduct of the two had made a huge mockery of all the 25 years he has litigated to improve the electoral process in the country.
“My Lords, this is not about ambition. It’s about what is left of us when one person is left to do what he has set out to do. This is why there are people going to people’s homes at 3am and 4am,” he said. He described Chebukati a “self-discredited” man who had gotten away with so much for so long.
His Senior Counsel counterpart, Zehrabanu Janmohamed, complained that her client John Njoroge Kamau had, unfortunately, been branded a surrogate petitioner, even a proxy. She went “further and further” to demonstrate the place of her petitioner in the scheme of things, concluding he, just like millions of other Kenyans, was let down by the commission.
Despite getting guidance of the courts in 2017, the commission “did nothing” to obtain excellence in elections of 2022, she said. It was casual in decision making, disregarded the voter, and was generally callous in its approach.
“What is happening here is not the way to have elections. People who are listening to this are even more confused. Has everybody forgotten the voter?”
In the end, she was generous enough to donate back a record seven minutes to the court. The only other person who came close to this was Counsel Ndegwa Njiru who donated 26 seconds of his allotted time back to the court.
Counsel Kibe Muigai was obviously enjoying himself, if the varying intonations of his voice was anything to go by. His robes severally fell off his shoulders as he wagged his index finger, sometimes all the fingers at the same time. He claimed all that could go wrong, actually went wrong with this particular election. He went around to throw a not so pleasant adjective against the chair of IEBC, and got away with it.
“I will not say he’s arrogant because that may not be allowed in court. But I will say he did not express himself in a manner showing remorse.” Muigai overshot his time, and was still talking when the mic went off, and stopper visually screamed; time’s up!
Counsel Apollo Mboya informed the court that his client, Vice Chairman Juliana Cherera was now affectionately known in public spaces as “Madam Opaque” all for championing for transparency in tallying and verification of results.
Prof Tom Ojienda paired with the veritable litigator, now a Senator, Okiya Omtata, to argue against the declaration of the election. He made the mistake of referring to Omtata as his “learned friend”, provoking Justice Isaac Lenaola to ask: “Just because you are now senators you have become learned friends?”
Ojienda was spitting Latin terms in court, dropping their French translations outside court and oozing heavy English back in court. At one time, he was talking of “the very jurisprudential weight of the mundane issues raised” when he was stopped by Justice Lenaola.
Chebukati was not having a good day in court. Indeed, Wednesday was the petitioner’s day in court. He had been accused of “perfecting the art of imperfection” by Counsel Njiru. Senior Counsel Philip Murgor had claimed the “election was controlled from everywhere except at IEBC.”
Prof Ojienda had sympathised with Muigai for having to defend one whom so much transgressions had been cited, while Senior Counsel Paul Muite accused Chebukati of unilaterally appointing and gazetting himself a national returning officer.
Lawyer Gordon Ogolla had argued Chebukati deliberately created a dysfunctional system to aid his criminal conduct. And borrowing from Biblical description of Jesus Christ’s birthplace of Nazareth, Ogolla submitted “nothing good could come out of a disfunctional body.”
All this, however, did not stop his lead lawyer from standing up for his client. Muigai pleaded with the court to return the hearings back to the traditions of the court where sideshows are not condoned. His plea was upheld by Justice Smokin Wanjala.