WHY CJ MARAGA MUST GO HOME

I per­son­ally agree with Pres­i­dent Keny­atta. The Supreme Court is not only crooked, it is also com­pletely irresponsible. And it has ab­so­lutely noth­ing to do with ‘fidelity to the Con­sti­tu­tion’

The Star (Kenya) - - Front Page - NGUNJIRI WAMBUGU Ny­eri Town MP @Ngun­jir­iWam­bugu

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 sel­f­re­demp­tion, 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.

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

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