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February 19, 2019

Judiciary, EACC in standoff over ‘forged’ papers

The Supreme Court of Kenya./Thomas Mukoya
The Supreme Court of Kenya./Thomas Mukoya

Allegations of forged documents in the presidential petition are pitting the Judiciary against the police, the Ethics and Anti-Corruption Commission and the Directorate of Public Prosecutions.

At the heart of this standoff is the validity of the Supreme Court judgment — and the documents forming its basis — that overturned President Uhuru Kenyatta's reelection. A rerun is set for October 26.

Was that 4-2 judgment on September 1 based on accurate documents, or were they forged to discredit the election and favour the petitioner, NASA presidential candidate Raila Odinga?

The Star exclusively reported on Thursday that IEBC CEO Ezra Chiloba told investigators the justices probably relied on forged documents — different from those submitted by the electoral agency.

In the standoff, the judiciary has declined to cooperate with the multi-agency team probing the matter first raised by lawyer Kioko Kilukumi.

Kilukumi, suing on behalf of a voter, argued the report presented by Supreme Court Registrar Esther Nyaiyaki and the dissenting judgment by Justice Njoki Ndung'u were different, and both could not be correct.

He demanded an investigation into whether the Registrar's documents were forged.

The Supreme Court ruling relied heavily on Nyaiyaki's documents prepared for the petition hearing.

In her dissent, Ndung'u said she examined all original documents and found the election was proper and Kenyatta duly elected.

After Kilukumi's complaint, DPP Keriako Tobiko announced a joint team from the EACC and DCI would investigate and appropriate action would be taken.

The team wrote to the Judiciary last month, asking to be provided relevant documents. They requested Nyaiyaki appear before the investigators. The judiciary has declined the invitation.

This led to a crisis meeting in the Judiciary, in which the leadership reportedly felt threatened. Sources familiar with the meeting said they contemplated obtaining orders from the court to block the investigation until CJ David Maraga, who was in Tanzania, could give directions.

Chief Registrar of the Judiciary Anne Amadi last month responded to the letter, saying the documents can only be released through a court order obtained from the Supreme Court.

"In the circumstances, you are advised to make a formal application before the Supreme Court for the release of the (documents) and any other orders you may require," she said in her letter to EACC head of investigation Abdi Mohamud. It was copied to the CJ and Nyaiyaki.

This was the first time the DPP's office had been directed by the Judiciary to obtain a court order from the Supreme Court. Such applications are normally made to Registrars.

Police now have asked Attorney General Githu Muigai to give his interpretation of whether the position of the Registrar — that orders to access the documents must come from the Supreme Court — is proper.

The Law Society of Kenya, meanwhile, said there was no justification to question Nyaiyaki over her report.

On Wednesday chairman Isaac Okero said EACC investigations would be a blatant violation of the Constitution. Any attempt by the EACC to investigate the Registrar would be an attack on the independence of the judiciary, he said.

"The JSC is an independent commission established by Article 171 of the Constitution. It is domiciled within the Judiciary arm of government," he said. "It has a constitutional mandate to promote and facilitate the independence and accountability of the judiciary."

The Chief Justice is chairman of the JSC.

Okero said only the JSC has administrative powers to discipline registrars, magistrates, and other Judiciary staff.

"Acts or omissions by such officers occurring within proceedings before a superior court are subject only to action taken by the court seized of said proceedings," he said.

"Any such acts or omissions fall within the purview of the exercise of the judicial authority which shall be subject only to the Constitution and the law and shall not be subject to the control or direction of any person or authority."

Voter Rashid Mohammed, through lawyer Kilukumi, wants the EACC to investigate Nyaiyaki for giving a conflicting report used to issue the majority judgment nullifying Kenyatta's win. He wants those culpable of preparing the report to be identified.

The court held that the election on August 8 did not conform to the Constitution and the Elections Act.

Mohamed wants the agency to study dissenting judgments delivered by Justices Ndung'u and Jackton Ojwang.

Mohamed said Ndung'u argued that she found discrepancies in the study of forms 34B deposited in the court for the case.

The voter wants the probe done on grounds the judge discovered the forms reportedly had legitimate serial numbers, security features, stamps and signatures. The majority opinion said a significant number were lacking.

"There is a serious offence of subverting the course of justice amongst other criminal offences," the letter says.

"Urgent investigations should be undertaken and any persons found to have committed offences in this sensitive and grave matter be speedily brought to book."

Justice Ndung'u said she was convinced beyond reasonable doubt the IEBC conducted the election in accordance with the Constitution and electoral laws.

She said the majority made their judgement solely based on the fact that forms 34A and 34B lacked security features and the justices neither perused nor scrutinised all the evidence tabled before the court.

"After going through evidence tabled by both parties, I make the following orders. The 2017 election was properly conducted in accordance with the law, any illegalities were not traced, found or proven and irregularities did not favour any candidate," she said.

The judiciary has been under attack from Jubilee and the President since it delivered the shock ruling.

Kenyatta said he opposed the judgment but would respect it. He called the judges wakora or crooks and said the Jubilee government would revisit the issue and amend the Elections Act.

Jubilee has since sponsored two Bills: The Election Laws (Amendment) Bill 2017, and Election Offences (Amendment) Bill 2017.

It says these will seal loopholes and benefit the country. NASA is demonstrating against the changes.

The amendments make it virtually impossible for the Supreme Court to overturn a presidential election. They restrict the powers of the IEBC chairman. They give greater weight to manual than electronic results transmission, in case of disputes.

The IEBC opposes the amendments as unnecessary for a proper rerun.

Western diplomats say hasty passage of the contentious amendments, so close to the election, are not in line with international best practices. They say it stokes tension.

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