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Queries as apex court delays verdict on Wajir poll petition

by kenya-tribune
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By SAM KIPLAGAT
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By WALTER MENYA
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The Supreme Court is on the spot over the delay in delivering a decision on the Wajir governor’s election petition, with a group writing to the Chief Justice to investigate corruption allegations.

After delivering judgments on all petitions before it, focus now remains on Governor Mohamud Abdi who is fighting to hold onto his seat against the combined force of former Governor Ahmed Abdullahi and Mr Ahmed Muhumed Abdi, who also vied for the seat.

The current composition of the court has Chief Justice David Maraga, who is also the court’s president, Deputy Chief Justice Philomena Mwilu, Justices Jackton Ojwang’, Mohammed Ibrahim, Njoki Ndung’u, Smokin Wanjala and Isaac Lenaola.

A petition to Mr Maraga by a group of elders last year alleges that a judge had been involved in corrupt dealings with one of the parties.

“The delays are a clear strategy to deny the people of Wajir justice. The delay strategy has made the case drag at the court for over five months (as at October 4, 2018 when the letter was written),” the petition to the Chief Justice reads.

The Wajir gubernatorial election petition was one of the first cases to find its way to the Supreme Court. This was after the Court of Appeal in April last year upheld the High Court’s decision to nullify the election over lack of the required academic credentials to vie for the position. The governor then moved to the apex court seeking to overturn the decision.

Since then, 10 months later, the decision is yet to be made causing anxiety and triggering claims and counter-claims.

More than 20 other cases, most of which were filed later, have been decided with three — Embakasi South, Wajir West and Ugenya constituencies — nullified. In the rest, the incumbents were granted a political lifeline as their elections were upheld.

Independent legal experts, who spoke in confidence to avoid antagonising the court, argue that the Wajir case was seemingly straightforward. In fact, one lawyer said, “It was possible to take even just a week since the judges said they will rely on affidavits filed and submissions did not take long.”

By Saturday evening, Mr Maraga had not responded to our queries sent to him through his chief of staff Conrad Bosire. “I am afraid the Chief Justice is not able to respond today,” he said.

The elders’ petition and conversations with judiciary insiders reveal intrigues surrounding the determination of the Wajir case.

At one point last year, at their regular conference, the judges are thought to have made up their minds on the matter, with only the writing and delivery of the decision remaining.

Furthermore, one of the parties familiar with the intrigues told the Sunday Nation that some supporters of one of the parties recently met to fundraise in Nairobi, an event where huge sums of money were raised “to support the resolution of the legal issue”.

The High Court had nullified the election of Mr Mohamud on grounds that he did not have a degree and secondly, because of massive irregularities. But it is the degree question that has found its way to the Supreme Court. Rival parties tabled affidavits disputing and confirming that Mr Mohamud is a graduate of Kampala University.

The country’s top court allowed Mr Mahamud to table his academic certificates stating that he was not given a fair hearing before the High Court and the Court of Appeal, which both ruled that he was not validly elected.

“It is on this that we must consider whether the appellant’s right to a fair hearing and trial will be infringed upon by the denial of admission of new evidence,” the judges said.

During the hearing, Mr Fred Ngatia for Mr Mohamud, argued that a degree or lack of it cannot be used to invalidate an election. The lawyer also took issue with the governor’s political rival, Mr Abdullahi, saying he never challenged the matter before the election but waited until after losing the seat.

“Why didn’t they raise the issue for five years?” he asked. The governor also has Prof Tom Ojienda in his team of lawyers.

Mr Ngatia also told the court that the High Court and Court of Appeal ignored the fact that the requirement for him to strictly prove that he holds the two degrees had been waived through a consent signed by parties during the pre-trial conference.

But through lawyer Ahmednasir Abdullahi, the former governor took issue with the court for “elevating the question of a university degree into a constitutional issue.”

He said the Wajir boss was given a chance to rebut claims that he does not possess a university degree, before the High Court, but he failed to appear and give evidence.

The Court of Appeal, in upholding the decision of the High Court, said as much.

The three judges said the issue of his academic qualifications was a matter specifically within Mr Mohamud’s knowledge.

“He and he alone could have testified as to which high schools, if any, he attended and what grades he attained. He alone could speak as to when he was enrolled at which university to study which course and for what duration. Only he could say what his student number was, who his tutors and lecturers were, what grades he attained and when he graduated,” Justices Philip Waki, Asike Makhandia and Patrick Kiage ruled.

The judges further said it was only he who could explain the strange absence of his name from the graduation list and it was only he who could say when he stated under oath to a committee of Parliament on September 2014, that he had enrolled at Kampala University but was yet to graduate.

“Finally, he alone could explain how, not having graduated as at September 2014, he somehow managed to have in his possession and present to the IEBC a Masters degree issued in March 2015; but which he somehow forgot that he had, when he filed the self-declaration form in 2017 stating that his highest academic qualification was a bachelor’s degree,” the judges added.

The appellate court said there really can be no difficulty, therefore, in arriving at the conclusion that Justice Alfred Mabeya, who nullified Mr Mohamud’s election, was justified, in his finding that he was not legally cleared to vie for the position of governor as he did not satisfy the qualification criteria set out in section 22(2) of the Elections Act and therefore not eligible to contest.

During the hearing in November last year, Siaya Senator James Orengo representing Ahmed Muhumed Abdi, who also vied for the seat, told the court that they will be conferring a degree to Mr Mohamud if they uphold his win.



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