SUPREME COURT INTERVIEWS

Judge criticises decision to rescind Uhuru 2017 poll victory

In her dissenting opinion Judge Njoki Ndung'u said questioned forms were valid

In Summary

• The majority decision voided the election on grounds that transmission of results was not done properly.

• Judge Chitembwe said the dissenting opinion by judge Njoki Ndung'u was sound as she cross-checked all physical forms and found no irregularities.

Justice Said Juma Chitembwe during his interview for position of Supreme Court Judge at the Supreme Court on May 3, 2021.
Justice Said Juma Chitembwe during his interview for position of Supreme Court Judge at the Supreme Court on May 3, 2021.
Image: CHARLENE MALWA

High Court judge Said Chitembwe on Monday said he did not understand the reasoning behind the Supreme Court's nullification of President Uhuru Kenyatta's poll win in 2017.

The majority decision voided the election on grounds that transmission of results was not done properly.

Judge Chitembwe said the dissenting opinion by judge Njoki Ndung'u was sound as she cross-checked all physical forms and found no irregularities.

He said Njoki looked at all disputed forms and found that those that were allegedly not signed were signed. 

Chitembwe also wondered why the Supreme Court failed to handle the Wajir governor's academic qualification case on account it should have been dealt with by IEBC.

He said the court ought to have considered the matter as it was within its roles to do so. 

“If a Form 4 dropout is cleared by the IEBC and vies for governorship and goes to be a governor, I don’t think my hands will be tied to ask him,by the way, did you have this degree certificate and how did you get it? To me the court cannot say since the IEBC cleared you then you have the qualification,” he said.

“If you know how to drive and you don’t have a licence to me you are not a driver.”

Chitembwe is one of the candidates being interviewed for the position of Supreme Court judge.

He promised to lock out external or internal influence on his decisions in cases before the bench should he become a member.

“Most of cases have external factors and as an impartial arbiter you are not blocking your ears but it is presumed you are not hearing. What will be at play will be the documentation presented before the court not stories in newspapers or views of people on TV,” he said.

He will bring on board the wealth of knowledge he has acquired in his 29 years of practice to the court if given the chance.

“I don’t want to say I will go there with totally different philosophy but will be an extra hand to re-energise the bench.”

He said that though public perception about corruption in the courts might not be easily eliminated, he will work towards reducing it. One way would be to have corruption cases heard and determined within a set time frame to ensure there is no delay.

Judges should give well-reasoned decisions so that even those that have lost cases will not be left guessing but understand the verdict, he said. 

“I am not saying Judiciary staff will be corrupt until Jesus comes; what I am saying is when survey is done it also covers perception and what I am saying is there will not come a time that people will say 100 per cent that Judiciary is not corrupt. 

“What I am saying that there would not come a time when people will have a perception that percentages will come to zero because we are talking about one who lost a case, one whose file was lost and to him it is corruption,” he said.

Justice Chitembwe also advocates for change of ideas, suggesting that the Judicial Service Commission caps the number of years one can serve on the Supreme Court bench to fifteen years.

“Maybe JSC can look at that so that a judge doesn’t go there and block others from ascending to that court,” he said.

Asked about radicalisation, the judge noted that it is deep rooted. He is doing research on the issue of radicalisation.

“I have participated in trying to fight this menace and I have engaged ATPU in Mombasa and they have good intentions. In some areas no body is coming forward to be a Nyumba Kumi elder for fear of being eliminated. Prison is doing good to reform them and if you go to a certain extent poking your nose you can also be eliminated,” he said.

Chitembwe believes the provisions of the Constitution on Muslim women and inheritance and recognition of Kadhis court do not discriminate against them.

“Many believe Muslim women are being discriminated although I have not seen a Muslim woman come forward and complain,” he said.

He noted that the Muslim community follows the provisions of the Quran which is their holy book.

The Quran provides for how and what a daughter, son, widow or widower gets as an inheritance.

“In Quran, if I die my daughter will get one share whereas my son gets two and that is cast in stone,” Justice Chitembwe said.

He defended himself against the accusations of embezzlement of NHIF funds when he served there, saying no money was lost hence his acquittal. 

 

(edited by o. owino)