Why CJ Maraga must go home

‘Maraga na hao watu wake wakora wamesema basi uchaguzi ipotee?’ ([Chief Justice] Maraga and his people — crooks— have said the election was invalid?)

This statement, by a visibly angry President Uhuru Kenyatta, has shocked Kenyans across the board. The usual do-gooders are especially scandalised.

“How dare he disrespect the Chief Justice like that?” “Was he not the same person asking Raila [Odinga] to go to court?’’ “Would he be saying the same thing if his win was upheld?”

Even some Jubilee supporters are worried. “Will he not alienate himself from some of his supporters as we head into the repeat election?” “Why is he showing his anger so publicly? Please ask him to control himself in public”.

These are some of the comments that have been made across the board.

But I personally agree with President Kenyatta. The decision by Chief Justice David Maraga and his three colleagues is not only crooked, it is also completely irresponsible. And it has absolutely nothing to do with “fidelity to the Constitution, strict adherence to the rule of law, or the fear of God,” as Chief Justice Maraga tried to explain in his preamble to the ruling. It is about institutional self-redemption, and fear.

The Supreme Court judges received all the forms 34As from the 40,883 polling stations across the country. All parties involved in the case went through them. Nobody, not even NASA, challenged the figures reflected in those forms. In their ruling, the judges did not comment about whether their audit of the numbers showed a different result from what the IEBC announced. What they had a problem with is how these results were transmitted.

So, essentially, the four Supreme Court judges are saying that the sovereign will of the Kenyan people voted for Kenyatta as President but because the IEBC transmitted that decision wrongly to Bomas, then the electorate should vote again! How is such a decision fidelity to the Constitution, strict adherence to the law, or fear of God?

An election is determined by voters and anyone nullifying the decision made by voters because it was transmitted wrongly is essentially negating and subverting the sovereign will of the people. Transmission is not the responsibility of voters; it is administrative; and it occurs after the people’s sovereign will has been exercised. Wrong transmission of that decision cannot be used to nullify the decision. All that needs to be done is to confirm the numbers, and then punish whoever transmitted the outcome using the wrong format. But the decision stands. Anything else is an attack on the decision. Justice Maraga and his three colleagues have essentially subverted the will of the Kenyan people.

I suspect what happened was that the Chief Justice and his three colleagues got scared by Raila and his NASA brigade. They bought into the argument that the Supreme Court erred in 2013 and now had a chance to ‘redeem’ itself. They agreed that the only way to do this was to pass a ruling that favoured NASA. This would explain Maraga’s apology for not being able to read the whole ruling “as some of you expected”. The only people who had asked for a long ruling were NASA.

I also strongly suspect that the Supreme Court then decided they needed to make a political decision. The numbers show Kenyatta won the presidential election but if they say that, NASA will hammer the court viciously and they might not survive. So, they must ‘redeem’ themselves. Since they are certain Kenyatta will win again, nullify the last election (Uhuru goes back to being ‘full’ President so he loses nothing), make NASA happy and ease the pressure on the Supreme Court; maybe even make a global name, and throw the ball back to Kenyans.

We will go back to the polls and President Kenyatta will win again. But after that we must take a critical look at the Supreme Court.

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