#WakoraNetwork linked State House to top court’s problems

President Uhuru Kenyatta infamously dismissed Supreme Court Judges as wakora (crooks) during his remarkable and angry public tirade immediately after nullification of his presidential election victory.

It might, therefore, be instructive that when the President’s communications team launched a propaganda offensive against Chief Justice David Maraga and the other three judges who voted to overturn the presidential election result, wakora was the favoured pejorative. 

It might also be significant that when Nyeri Town MP Ngunjiri Wambugu filed a petition seeking removal of the Chief Justice, most of the “evidence” seemed to have been lifted directly from the propaganda offensive crafted by the State House unit trying to establish civil society influence over the Supreme Court.

For now, that Mr Wambugu has not withdrawn his petition for the removal of Chief Justice David Maraga despite assenting to a public request from President Kenyatta, is probably a clear sign that the Jubilee administration has not relented in its vow to “fix” the Supreme Court.

“I stand by the grievances in the Maraga petition, but due to the political environment, I will not pursue it, for now,” the MP had Twitted after the President asked him to abandon the move during a September 14 meeting of Central Kenya leaders at Sagana State Lodge.

PLOY

The “retreat”, it seems, was more of a public relations ploy in light of anti-Jubilee protests in Justice Maraga’s native Kisii region following the public onslaught on the CJ.

At Sagana, the President himself had indicated that asking the petition to be dropped was more out of political exigency than a matter of principle.

“I understand your pain and action. But we have an election to win on October 17. That has to be our focus. Leave the court alone,” the President had told Ngunjiri.

That the MP has, more than a fortnight later, still not withdrawn the petition is telling.

It is also clear that far from ceasing public attacks against the apex court, the tempo of vilification has actually increased, as evidenced with President Kenyatta’s speech from State House on September 21, a day after the Supreme Court delivered its full ruling.

JUDICIAL COUP

The President repeated the Jubilee refrain that annulment of his election victory amounted to a “Judicial coup”, describing the four Judges who voted to annul — CJ Maraga, Deputy CJ Philomena Mwilu, Justice Smokin Wanjala and Justice Isaac Lenaola —as “judicial dictators”.

READ: Jubilee shocker awaits Maraga

Ignoring the reasons outlined in the majority decision, the President preferred to adopt the dissenting opinion from Justice Njoki Ndung’u, who had harshly criticised her colleagues in disagreeing with the finding that the official result forms 34A and 34B from which the presidential election resulted were computed were riddled with anomalies and might have been falsified.

The Judge said she had personally scrutinised the forms and found them in order.

She also disagreed with the observation that the Independent Electoral and Boundaries Commission had defied the court’s order to grant access to its computer servers, thereby raising suspicion that it had something to hide in relation to claims that the system had been hacked and the election results manipulated.

In her opinion, IEBC had complied with all that was asked by the court. Interestingly, the lawyers for President Kenyatta, the IEBC and its chairman Wafula Chebukati did not, at the appropriate time in the course of the hearing, raise the objections that came to make Judge Ndung’u’s belated defence.

SEIZED

But what is clear is that President Kenyatta and Jubilee supporters have eagerly seized on the dissenting minority findings of Justice Ndung’u and Justice Jackton Ojwang’, which they give more weight over the majority decision that carried the day.

It is the minority argument that seems to embolden President Kenyatta’s claim that he was robbed of electoral victory, and provide justification for renewed attacks on Chief Justice Maraga and the Supreme Court in General.

The President has suggested Jubilee will use its numbers in Parliament to tame the Judiciary.

Apart from Mr Ngunjiri’s petition against the CJ awaiting its turn at the Judicial Service Commission, the orchestrated onslaught also includes a separate petition against Deputy CJ Philomena Mwilu and Justice Isaac Lenaola filed by Mombasa activist Derrick Malika Ngumu.

CONFEDENTIAL DATA

The petition raised eyebrows because it included alleged mobile telephone call logs meant to prove that the two Supreme Court judges were in communication with Mr Odinga’s lawyer James Orengo and Nasa co-principal Moses Wetang’ula in the course of the presidential petition hearing.

It is illegal and irregular for Safaricom, Airtel, Telkom and any other telephone service provider to release such confidential data to a private citizen without a court order.

The National Intelligence Service and the Kenya Police Directorate of Criminal Investigations can acquire call records in the course of legitimate investigations, but there is no indication in this case that there were such investigations.

READ: Jubilee split over plan to oust Maraga

And where such data is legally acquired, it would still be an offence for the investigative agencies to pass it on to private citizens.

If the call logs are genuine, that would point to high-level collusion involving State security agencies, the phone companies and the petitioner.

CONTROVERSIAL LEGISLATION

They could also be fake and only meant to tarnish the names of the judges, but that will only be established once the hearing starts at the Judicial Service Commission. It might therefore be important that the hearing summons NIS and DCI bosses, Major-General Philip Kameru and Mr Ndegwa Muhoro respectively, as well the mobile phone company chief executives, to validate call logs before they are admitted as evidence.

Jubilee is also moving ahead with controversial legislation designed to make it harder for the Supreme Court to invalidate a presidential election. One specific step outlined in the proposed amendments to election laws is the provision that a failure or irregularities in the transmission of election results cannot be grounds to annul the outcome.

Systematic irregularities and illegalities in the both the manual and electronic transmission of results is what persuaded the Supreme Court that the declaration of President Kenyatta as winner of the August 8 poll could not be allowed to stand.

Jubilee is also examining an unprecedented move to try and get the Supreme Court decision “reviewed” largely relying on claims judges who voted in favour of the petitioner relied on faked documents supplied by the Court Registrar.

INVESTIGATIONS

This is contrasted with Judge Ndung’u who allegedly scrutinised “genuine” documents and determined that they were not riddled with inconsistencies as claimed.

To push this version, the government is behind also unprecedented investigations of the Supreme Court case, entrusted to both the Directorate of Criminal Investigations and the Ethics and Anti-Corruption Commission.

The two agencies have been specifically tasked to investigate Supreme Court Registrar Esther Nyaiyaki for allegedly giving the judges doctored documents out of the scrutiny ordered by the court of election results forms 34A and 34B.

These investigations were curiously launched and fast-tracked on the a basis of a complaint by a “voter”, Mr Rashid Mohammed, who wrote to the EACC alleging the documents examined by Justice Ndung’u were the genuine IEBC forms, while the other judges relied on fake forms.

It is not clear how a private citizen could have come across such information, but it is notable that Mr Mohammed filed his complaint through a lawyer well-connected with the Jubilee machinery, Mr Kioko Kilukumi.

MALIGN

The speed with which the investigations were launched might not be surprising considering that DCI Muhoro and EACC boss Halakhe Waqo both have well-earned reputations for pursuing the Jubilee Party line in a myriad of criminal and corruption investigations.

It is unlikely that any review of the Supreme Court hearing or the Muhoro-Waqo investigations will result in anything that can reverse the presidential election verdict.

However, the strategy might be to sufficiently malign the verdict and the judges as a prelude to a concerted push for their ouster at the appropriate time.

In that regard the legal and administrative manoeuvres are being mounted in tandem with the vicious propaganda offensive being played out on both the political platform and social media.

It is not a coincidence that when dirty tricks propaganda arm of the Presidential Strategic Communications Unit launched the social media tirade campaign against Justice Maraga, it readily borrowed directly from President Kenyatta’s depiction of the Supreme Court as wakora.

CIVIL SOCIETY

The unit created the #WakoraNetwork hashtag, under which it tried to depict the judges who annulled Mr Kenyatta’s election victory as corrupt and acting under the influence and direction of a civil society cartel that had allegedly taken control of the judiciary.

Civil society is a favourite target of President Kenyatta and Deputy President William Ruto, alongside independent media, and with a non-compliant judiciary now apparently added to the list.

The social media campaign against the Supreme Court bears the imprint of President Kenyatta’s official social media guru, Senior Director for Digital, Innovations & Diaspora Communications Dennis Itumbi, a long-time champion of the propaganda offensives against civil society.

Mr Itumbi rose to notoriety in the run-up to the 2013 elections when he created the #Evil Society campaign against civil society groups blamed for helping the International Criminal Court crimes against humanity prosecutions of Mr Kenyatta, Mr Ruto and four others out of Kenya’s slide into 2007-2008 post-election violence.

That was the time he first created an organogram purporting to define the links between key civil society individuals and groups, their international partners, and ICC.

PROPAGANDA

Mr Itumbi enjoys extraordinary leeway to run social media propaganda campaigns outside the formal reporting and accountability system of the Presidency.

He is probably the only public servant in Kenya, politicians excluded, given leeway to directly attack members of the Judiciary or any other officers who attract the President’s ire.

In the run-up to the presidential election petition this year, his propaganda unit retrieved and updated the chart in a renewed effort to demonstrate ties between civil society, foreign donors and political opposition.

A direct outcome of the propaganda blitz was a coordinated attempt by the DCI, the EACC and Mr Fazul Mohammed’s NGO’s Coordination Board to deregister Kenya Human Rights Commission and Africog.

It is more or less the same chart that has again been dusted-off and updated with additional villains in the effort to depict a Supreme Court captive of “Evil Society”.

CHIEF VILLAIN

In 2013 the chief villain was the ICC. Earlier this year, the propaganda unit targeted Hungarian-American financier and philanthropist George Soros, whose global Open Society initiative was accused of sponsoring “regime change” through local NGOs.

The latest alliteration in the wake of the Supreme Court annulment of President Kenyatta’s election now accuses the same NGOs of essentially holding the court hostage and even dictating the verdict.

It latches largely onto a long-standing Judicial support programme under the International Development Law Organisation (IDLO), with funding from the Danish International Development Agency (Danida), United Kingdom Agency for International Development (UKaid) and the United States Agency for International Development (USAid) to make claims that the Supreme Court was under control of civil society and foreign partners who allegedly influenced the presidential election judgment.

The key ‘evidence’ is presented as a Judiciary Bench Book on Electoral Dispute Resolution launched earlier this year which apparently suggested a ‘qualitative’ rather than ‘quantitative’ approach to election petitions, hence the Supreme Court verdict giving primacy to vote count transmission processes rather than the actual vote count.      

NO EVIDENCE

It is a tenuous argument at best. No evidence is offered that the programme or the guidelines unduly influenced the judicial decision.

Names are thrown-in from the hate list of civil society players—the usual suspects such as Makau Mutua, Maina Kiai, John Githongo, Kenya Human Rights Commission, AfriCog—but no evidence offered of their alleged role in IDLO or influence on the Judiciary.

CJ Maraga’s predecessor Willy Mutunga incidentally sits on the international advisory board of IDLO, and he was the first target of the ‘Evil Society’ campaign when Mr Kenyatta’s propaganda machinery tried to block his ascension to the Supreme Court presidency in 2011.

The propaganda conveniently overlooks the fact that IDLO support for the Judiciary predates Justice Maraga.

INTERNATIONAL SUPPORT

It also ignores that similar programmes of international support for the Judiciary and wider justice sector including the police and other security organs actually dates back many years, to the period in 2003 when then Justice Minister Kiraitu Murungi, now the Meru Governor championed a Governance, Justice Law and Order Sector (GJLOS) reform programme.

There is no evidence that international support then and now has influenced or directed Judicial findings.

Neither is there any evidence that such support has been ulterior or offered without the knowledge, support and approval of the all other relevant departments of government, including the cabinet.

It is interesting, however, that the Ngunjiri Wambugu petition against Justice Maraga was almost a carbon copy of the State House ‘Evil Society’ propaganda offensive trying to tarnish the Judiciary.

Prof Makau and Mr Kiai, who were named in the Wambugu petition, have already asked to enjoined so that they can have their say when hearing starts. They have opposed withdrawal.

And Judge Lenaola has in turn filed notice of intention to sue Mr Itumbi for defamation on the ’Evil Society’ campaign; as well the Standard Newspaper for publishing details from Mr Derrick Malika Ngumu’s petititon before the papers were actually filed.

 [email protected] @MachariaGaitho