A couple of years ago, High Court Judge Prof Joel Ngugi could not publicly make known his opinion on whether President Uhuru Kenyatta and his Deputy William Ruto should have run for office, claiming that he would have pre-judged had the case been brought before him. He was speaking during a key note address at a Diaspora Conference after his appointment as a judge of the high court by then Chief Justice Dr. Willy Mutunga. Later he was appointed to head the Judiciary Transformation Network (JTF) Secretariat in Chief Justice Office. The secretariat was charged with the leading role of implementing the JTF, coordinating Judiciary Transformation activities among all court stations; and lead in envisioning and executing a culture change strategy for the judiciary – this is where the rain started beating us.
During the high profile symposium organized by civil society actors and human rights operatives lead by John Githongo, Maina Kiai, Donald Omondi Deya, Funmi Olonisakin and Gladwell Otieno, the discussants were gleeful to hear that Joel was part of the Kenyan Justice system and was contributing towards the ‘destiny’ of Kenya. “If we can get a few people inside the legislative body and also the Executive?” some discussed, “This would be great. Currently there are several Kenyans who have lived in the Diaspora who have started the journey of expressing their desire to serve Kenya through elective office in the legislative arm of Government.” they further argued. To get to the Executive the Diaspora would have had to identify a cabal they could influence with ease and be part of. It wasn’t stupefying that Maina Kiai’s name was floated as the friendly replacement for Willy Mutunga; David Maraga and Philomena Mwilu were late recruits.
Fast forward, the events of July 7, 2017 blew the cover for Justice Joel Ngugi. Seating in a three-judge bench which included Justices Joseph Mativo and George Odunga hearing a Judicial review case filed by the National Super Alliance (NASA), Justice Joel Ngugi directed that, “the IEBC commences the procurement process for printing of election materials for presidential elections scheduled for August 8 so as to ensure free, fair and transparent elections.” This was the start of a protracted cold war between the judiciary and the executive, the former seemingly gate-keeping for the opposition. This decision angered Jubilee, with a raffled President Uhuru expressing displeasure at how the courts were dispensing electoral related cases, “They are taking us for fools”, he said. He further stated that Jubilee would not allow its opponents to use the courts and to intimidate the IEBC to win the poll using the back door. However, the Chief Justice David Maraga through a statement came out to defend the Judiciary. “When political leaders cast aspersions on the administration of justice based on a misinterpretation of my statements, it has the potential to impair public confidence in our courts, and this concerns me a great deal.” Maraga termed the statements from politicians – Uhuru, as ‘unfortunate and injurious’ to an independent judiciary
Justice Joel Ngugi’s dethronement of Ms Wanjiku Kibe as MP for Gatundu North on 1st March on ‘flimsy grounds and planted evidence’ is now the clearest indication that the judiciary is not yet done. Reading through the 67 page judgment overturning Ms Kibe’s resounding win of 39,447 votes against the petitioner former MP Clement Waibara’s 9,314 votes, one is left wondering what informed such a ridiculous ruling. Though he faulted the Independent Electoral and Boundaries Commission (IEBC) for the illegalities and irregularities committed in the August 8, 2017 elections, he was at fault to nullify an election merely on technicalities even when the process largely met the minimum threshold of credibility; taking a similar path the Supreme Court did while declaring Uhuru’s election null and void.
From the onset, it was evident that the petitioner had cunningly crafted his script long before the August 8th vote, which was not difficult for a judge of Justice Joel Ngugi repute to establish. Even though the judge absolved Ms Kibe of any wrongdoing, saying that she never participated in propagating the irregularities, the key irregularities as mentioned in the judgement were minor and couldn’t have affected the outcome of the election whatsoever. Irregularities cited included; loss of four unused ballot booklets of 50 ballot papers each from Mungai, Kawira and Mang’u polling stations, 114 votes which according to Form 35 A were cast in favour of Mr. Waibara were missing from the ballot box of one of the streams at Mutuma Primary School, a missing tally sheet and broken ballot box, the court established. Further, 115 votes, which according to Form 35 A were cast in favour of Mr. Kigo Njenga were missing as well as three votes cast in favour of Dominic Gicheru at Mungai Primary School.
Interestingly, the judgment on paragraph 140 and 141 found the petitioner culpable of electoral malpractices having been found in possession of the missing electoral materials that surfaced at the petition. Out rightly, this points to a malicious and premeditated petition similar to what was witnessed at the Supreme Court where fake documents were swapped at the registry to build up a case. “It is fairly obvious from the evidence that has emerged on the missing votes and how they found their way to the Petition, that aside from the moral culpability of the agents and employees of the 2nd Respondent in conducting an election marred by irregularities, a serious election crime was committed. A person or a group of people were able, in blatant and criminal disregard of the law, to break open ballot boxes for at least two Polling Stations in Gatundu North and stole at least 332 votes therefrom. There is no question that this is a serious election offence. The perpetrator(s) need(s) to be found, prosecuted and punished in accordance with the law.” Read the judgment.
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Ridiculously and in total disregard of the facts before him as presented and argued by the 1st and 2nd Respondents, the Judge further stated that; “Unfortunately, the evidence that emerged before me did not point with precision to a specific perpetrator. It would appear that there are at least seven people who should be investigated: one or more of these seven individuals is responsible for this electoral offence. From the chain of custody of the ballot materials, the alleged appearance of the materials in public places and their eventual appearance in the Petition, it is clear that one or more of these six people is responsible for the theft or at least conspired to steal the votes.” Though in his final determination the judge directed that the determination of the Court shall be transmitted to the Director of Public Prosecutions for investigation and possible action on the criminal aspects of the identified electoral malpractice as per paragraphs 140 -141 of his judgment, sending the people of Gatundu North back to the ballot was irrational and uncalled for considering the prevailing evidence adduced before him on the role of the petitioner Mr. Clement Kung’u Waibara who exhibited the stolen votes in his Election Petition before the Court. The judge ought to have explored on how the petitioner came to be in contact with election materials and whether the circumstances under which he came into contact with them suggested the commission of an election offence; which was enough ground to drop the petition with cost.