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ELECTION 2022

Body language of judges may give clues on verdict of BBI hearing

OPINION
By Kamau Ngotho | Jan 23rd 2022 | 6 min read

Supreme Court Justices led by Chief Justice Martha Koome during the hearing of the BBI appeal. [Collins Kweyu, Standard]

This week, Kenyans were glued to their television sets watching the live transmission of the hearing of the Building Bridges Initiative appeal at the Supreme Court.

One of the core matters argued at the three-day court sitting was about something called ‘basic structure’. Lawyer James Orengo wasn’t sure whether it was some ‘animal or something like a ball to kick around.

Well, as we await the four lordships and three ladyships to tell us exactly what the ‘basic structure is, and whether it applies in our Constitution, I will give you my ‘basic structure’ in the understanding of the Supreme Court – and indeed other courts – formed from observations of a layman, or a journalist for that matter.

One, the courtroom is an intimidating place. I have attended a luncheon at State House, had dinner at a president’s private home, and sat in the Speaker’s gallery in Parliament. But none of those places comes close to as hallowed and frightening as the courtroom.

I don’t know why – maybe it is the sitting arrangement, the red robes, wigs, and that kind of paraphernalia, or maybe the language of ‘my lords and my ladies.

I will even tell you something personal. One of the seven judges of the Supreme Court is fairly well known to me. We are agemates and have known one another for close to three decades, and had a mutual friend – an older man who has since passed on. Outside the courts, my friend the judge is easy going and pleasant company. But I feel intimidated every time I see him in robes. I have never even been to his office and have no wish to.

The second aspect of my ‘basic structure’ formed by observing court sessions is in the body language of the judges and in their communication to the advocates and other parties appearing before them.

Believe me – from the body language of the judges and their communication, I have been able to correctly predict the outcome, or rather the likely verdict.

Tensed court

I will give you an example of the presidential petition of August 2017. I don’t know whether it was because the first sitting was on a Saturday evening when everybody is on ‘low glucose’. From mere observation, one could tell the session was held in a foul atmosphere. One of the judges even addressed, or rather, dressed down, an amicus curie, and cut him short in language that wasn’t very polite. Oh yes, it is all on YouTube where you can view it.

That evening, I remember telling a friend with whom I was watching TV somewhere on Mombasa Road that from the mood I saw in court, I got a sneaking suspicion of what to expect and in whose favour. True to my prediction, the court ruled as I had predicted.

Indeed, you occasionally could smell the unfriendly atmosphere inside the courtroom during the rest of the sittings in that petition. The only other time I smelt such was during the High Court hearing and delivery of judgment on the BBI case.

The third aspect in ‘basic structure’ I have formed by observing and listening to proceedings in court is that you can predict what verdict to expect by listening to the questions judges ask respective litigants and their body language when listening to the answers given. A certain question asked can give you an idea on the opinion the judge has already formed on certain evidence or submission presented, and the likely determination to make.

What is in numbers?

The last aspect of my home-grown ‘basic structure’ in understanding and predicting court outcomes has to do with noting that one aspect of a case that a judge or judges pick out for emphasis and clarification when hearing a matter before them. The submissions and/ or findings on that particular aspect or item is almost the one on which the final verdict will be anchored on.

I will give examples in the presidential petitions in March 2013 and August 2017 elections. On both occasions, the judges were keen on the numbers recorded and how they were tallied at various stages in the election process. For that reason, in both petitions, the court-ordered scrutiny of the relevant election materials and a report submitted to the court.

It is instructive that the different verdicts in March 2013 – where the petition was thrown out – and in 2017 where the election was nullified, had very much to do with how the scrutiny ordered was done, the findings made, and handling of the report from the scrutiny.

In the 2013 petition, the scrutiny of the election materials came about suo moto – which is legal language to say “on the court’s own motion” where the judges ordered the court registry to conduct independent scrutiny of all Forms 34 with results from each of the 33,400 polling stations in the country, and scrutiny of all Forms 36 used by the Independent Electoral and Boundaries Commission to aggregate results in Forms 34.

Further, the court ordered verification of results from 22 polling stations randomly picked from different parts of the country. The exercise took place at the KICC under the supervision of the Registrar of the Judiciary at the time, Ms Gladys Shollei.

The 2013 scrutiny was ordered at the opening of the petition before the commencement of the hearings, the report presented and the parties – the petitioners, IEBC, and the respondents – given ample time to look at it and comment.

The judges’ verdict on the report of the scrutiny was that the various errors and inaccuracies detected were not grave enough as to materially affect the final tally by the IEBC. There was no objection on the verdict from any party.

In contrast, the scrutiny in the August 2017 petition was ordered at the conclusion of the hearings, and not on court’s own motion but at the request of the petitioners.

The court orders were precise that the scrutiny be on results from 292 polling stations stated in the petition of the opposition National Super Alliance (NASA) CEO Norman Magaya, 688 other polling stations in another affidavit by one Omar Yusuf, and a further 14,078 polling stations contained in the affidavit of one Dr Nyangasi Oduwo.

Curiously, the scrutiny team under the supervision of the Registrar of the Supreme Court at the time, Ms Esther Nyaiyaki, did random scrutiny of 4,299 Forms 34As across five counties and carried out an analysis of all Form 34Bs, which wasn’t the precise orders of the court.

The scrutiny team filed a 13-page report with annexes running into 401 pages. Surprise of surprises, the parties in the petition were given only 10 minutes to look at it and respond! Well, I don’t know what material lawyers are made. If you ask me, only a robot could do that!

The rest is history. The election was nullified on basis of ‘irregularities and illegalities. Curiously, in a dissenting judgment, Justice Njoki Ndung’u – who unlike the parties in the petition had ample time to peruse the scrutiny report – said she had looked at the forms said to contain errors and found none!

Postscript: In this week’s Supreme Court hearing, advocate Nelson Havi for the petitioners compared the ‘basic structure’ to the heart of a person that he said cannot be tampered with much as any other organ can be operated on or even replaced. Not quite, Mr Havi. The first heart transplant was done by Dr Christiaan Barnard at a hospital in Cape Town, South Africa, on December 3, 1967, which is 10 years before the lawyer was born!

Indeed, only three weeks ago, one David Bennet received a pig’s heart in Maryland, US, and is still alive. Meanwhile, like you, I am waiting to hear what that thing or animal called ‘basic structure is.

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