How NASA got its victory at SCOK; and the case for wakora

Whenever we talk of judicial independence, the emphasis is always on institutional independence from the executive branch. However, it is also true that judicial independence is the court’s ability to perform its constitutional function free from actual or apparent influence by institutions and persons other than the executive. This is called decisional independence or personal independence. The inner workings of the Supreme Court and its day-to-day operations certainly do not get as much public attention as its rulings, and only a very small number of its announced decisions are enthusiastically discussed and debated. Although we sometimes envision the justices formally robed and cloistered away in their chambers, unaffected by the world around them, the reality is that they are not that isolated, and a number of outside factors influence their decisions.

That is why we must worry that in the conduct of Election Dispute Resolution, Kenya’s Judiciary has been taken captive by influence peddlers including powerful non- state actors and academia, some of whom are closely linked to NASA; persons and organizations that have hitherto borne nefarious intentions against President Kenyatta and Deputy President Ruto. Special interest subtle pressure could have contributed a great deal to the decision to grant the petition to annul presidential elections by Kenya’s Supreme Court irrespective of the immeasurable magnitude that this decision has on the economy and its potential to produce a constitutional crisis.

One lesson drawn from the experience on the ICC process is the need to understand the historical antecedents of institutions and the interests driving organizations and the key actors. An interest mapping of individuals and organizations would show that we are dealing with the same players influencing JTI who were involved in the ICC process, and who have therefore taken judicial thinking on electoral management captive.

Kenya’s Judicial Training Institute (JTI) is the centre for influencing judicial thinking on fundamental legal issues. In relation to judicial thinking on election disputes, JTI has evolved a number of important tools. A key plank in the tool kit of JTI is the Judiciary’s Benchbook on Electoral Disputes Resolution, 2017. JTI has also published Friend of the Court & the 2010 Constitution: the Kenyan Experience and Comparative State Practice on Amicus Curiae in collaboration with the National Council on the Administration of Justice (NCAJ), Public International Law & Policy Group (PILPG), Equality Now, Solidarity for African Women’s Rights (SOAWR) Coalition, Kenyans for Peace with Truth and Justice (hosted by Africog), The Kenyan Section of the International Commission of Jurists (Both of which organizations were active on ICC campaign against Uhuruto). These tools constitute the main sourcebooks for training judges at all levels on election dispute management resolution.

In developing the Bench Book on Electoral Disputes Resolution, IDLO notes that “The public backlash against the judiciary following the Presidential petition decision in the Supreme Court in 2013 provides a lesson on the immense difficulties of convincing a cynical public that judicial decisions are based on legal reasoning and not political influence. IDLO sights its on-going successes in the Kenya Judicial Process as

  • Preparing the Judiciary Working Committee on Elections Preparations (JWCEP) 2) Supporting the JWCEP to develop procedural rules for hearing disputes concerning presidential elections 3) Training over 700 judicial officers and court staff on the new Constitution and electoral laws; 4) Embedding a group of researchers within the judiciary to serve as reference points for judicial officers hearing electoral disputes; 5) Created the Permanent Judiciary Committee on Elections (JCE), in preparation for the 2017 elections as a successor to the JWCEP, with Dr. Collins Odote serves as the Judicial Legal Advisor.

All the work by JTI on EDR is supported by the little known but highly influential international NGO, the International Development Law Organization (IDLO). Infact, in the precis to the Benchbook signed by chief justice Maraga, the CJ observes thus:” I am grateful to the International Development Organization (IDLO) for supporting the work of the Technical Committee and the publication of this Bench Book.” It is noteworthy that IDLO had a representative in the Technical Committee that came up with the Bench Book chaired by Judge Stella Mutuku. Other actors in the Committee included Dr. Steve Ouma (former deputy executive director Kenya Human Rights Commission), Dr. Linda Musumba (a board member of Kituo Cha Sheria, an organization involved in witness procurement at ICC), Moses Owuor (Law society of Kenya), Dr. Collins Odote (Judiciary Committee on Elections Legal Advisor. He is co-founder of Institute for Law and Environmental Governance together with current Head of Ford Foundation, Odhiambo Makoloo) and Justice (Rtd) Violet Mavisi (a former Commissioner at the KNCHR during the time of Maina Kiai and Hassan Omar. This is the same cast of actors published an important publication

IDLO: IDLO is an intergovernmental organization which on paper is focused on the rule of law and development. It is governed by Board of Advisers whose chair currently is Prof. Makau W. Mutua,

Professor, The State University of New York, Buffalo, NY, USA, who is also chair of Kenya Human Rights Commission, and co-conspirator with Maina Kiai on several political and legal activities. Former Chief Justice, Dr. Willy Mutunga sits on IDLO International Advisory Council. In Kenya, its Director is Otieno Okero. IDLO also provide communication consultant support to the Chief Justice and Deputy Chief Justice in the person of Mburugu Gikunda formerly of Media Focus on Africa that did a lot of work on PEV. Mburugu is closely connected with Ms. Fleur Van Dissel of Dutch origin, the documentalist for Rt. Hon. Raila Odinga. They worked very closely on PEV at Media Focus. IDLO has worked to strengthen the capacity of judicial officers in Kenya, as well as the technical capacity of the judiciary to use ICT so that citizens have increased access to information. IDLO has also supported the judiciary through the Directorate of Public Affairs and Communication to ensure more strategic, streamlined communications across the judiciary. IDLO’s funding in Kenya for the judiciary support programme is mainly from the US Agency for International Development (USAID) and DANIDA. At USAID, IDLO’s contract is managed by Zeph Aura, a close confidant of Raila Odinga, who sought to be IEBC CEO and lost to Ezra Chiloba.

Judicial Training Institute: JTI is an organ of the judiciary involved in giving judges and other judicial officers continuous legal education on pertinent legal issues. Its current director is Dr. Otieno Odek, Judge of Appeal who recently authored an authoritative paper, Elections Technology Law and the Concept of “Did the Irregularity Affect the Results of the Election”? (this paper became the textbook guide in various discussions in the course of the SCOK Petition by Raila Odinga.

The previous Director of the Centre, Judge Joel Ngugi, a close confidant of former CJ Willy Mutunga, and one of the judges in Judge Mutunga’s war Council )(East African Standard, 27th September, 2013) (the other War Council Members being Duncan Okello, Kwamchetsi Makokha & Denis Kabaara. Okelo was Mutunga’s Chief of Staff and has transitioned to the Maraga administration as the Director, National Council on Administrative Justice, which Maraga chairs).