On the second day of the 2022 presidential election petition hearing, Kenya’s electoral commission, the punching bag of the first day, took the stand, with its lawyers firing on all cylinders against grave accusations.
Prof Githu Muigai, the lead lawyer for Independent Electoral and Boundaries Commission (IEBC) chairman Wafula Chebukati was the first to counter Wednesday’s missiles, with his colleagues Eric Gumbo, Mahat Somane, Eric Gumbo and Abdikadir Mohamed in hot pursuit.
From the very start, Muigai made it clear they would not “perambulate” all over the petition. And perambulate they did not, as they went for jugular of the petitioner case, painting a picture of opponents clutching on straws.
“There are no less than three governors in this courtroom, four Senators and four MPs, all elected under this election. It is not in my place to suggest the question to address them, but I plead with to ask them; are they happy with their own election?"
Prof Tom Ojienda (Kisumu Senator), James Orengo (Siaya Governor) and Okiya Omtata (Busia Senator) must have cringed in their seats, as Muigai suggested he had just made a proper use of the term hyperbole.
But it was the saintly decoration of Chebukati by his team that must have disturbed the petitioners more. Muigai claimed the “vilification against this gentleman goes beyond anything we have ever seen in this court.”
“At an appropriate time, this is a man who should be recognised as one of the outstanding heroes of this country,” he submitted. Mohamed, a former MP for Mandera Central described Chebukati as everyone’s “bogeyman” to whom anything could be fixed.
The team had no kind words for the four Commissioners who disputed the final announcement. Muigai started the legal lynching of the quartet, saying their “sanctimonious, self-righteous, pompous, pontification” was an afterthought.
And then Mohamed spoke of “rapture moment” for the four who participated in all the preparations for the election, travelled to Greece, read out results at Bomas before suddenly realising everything was wrong.
Harvard-trained lawyer Somane seized up the country and bound it in a statistical storm. By the time he finished, lawyers in the room were gasping in the air, and wondering whether they missed statistic units in law school.
He made a mockery of the interception claims, the hacking of Commission servers and staging of results, saying it all amounted to fiction.
“If such technology exists, we actually want to buy its patent,” he said. In the end, he asked the petitioners to “get over it, its over.”
Before him, Gumbo had questioned the petitioner’s relation with their agents, claiming agents are like spouses: “You choose the ones you trust. If you choose the wrong ones you can’t blame anyone.”
He reiterated Muigai’s “hearsay on the back of hearsay” refrain while Karori asked the petitioners to advise their clients to pick up whatever issues they had with the election with the voters.
“If the votes are insufficient, you take it up with the people, not the Commission,” he said.
He laughed off the petitioners claims on rejected votes saying the matter was settled in law.
Chebukati’s wing had such a field day that they donated 13 minutes, 20 seconds of their time back to the court.
When Ruto’s side took over in the afternoon, it was to take comfort in the submissions made in the morning. They sank their collective teeth deeper.
Lead lawyer Fred Ngatia confessed that although he did not possess the technological ability of Somane he would do well to rely on traditional logic. Counsel Melissa Ngania, perhaps the youngest of the counsels who appeared in the court yesterday was feeling Biblical.
She quoted Proverbs 10:19, saying when words are many, transgression is not lacking, but whoever restrains his lips is prudent.
"They had to use eight petitions to say so little," she claimed.
By the time Senior Counsel Prof Kindiki Kithure took the floor, it was to spread the "immutable principles" of laws on the bread his colleagues had already baked. His preamble, however, spoke of mobs of senior State officers storming Bomas in an attempted coup d'état.
He was spitting out violent terms; frontal attack, marauding mobs and spectacular defeat. He simply went for the kill, comparing the events in Bomas to the invasion of the US Capitol following defeat of former US President Donald Trump in the 2020 US elections.
"The mob, the same mob is here shouting we must release Barabbas they are in this court, don't let them benefit from their own malfeasance," he said.
Senior Counsel Kioko Kilukumi turned to Solomonic wisdom to lay down his case. He claimed the electoral baby birthed on August 9 rightfully belonged to Ruto, and nudged the court to look into the baby's DNA in the forms 34A, 34B and 34C.
"The order that commends itself to you, is to dismiss this petition," Senior Counsel Kiragu Kimani concluded.