Chief Justice David Maraga says that the Supreme Court will not hesitate to overturn another presidential election if the Independent Electoral and Boundaries Commission (IEBC) fails to adhere to the law in conducting the polls.
While reading the majority ruling on Wednesday, the CJ said the apex court’s consistency and fidelity to the Constitution is an unwavering commitment, and that it won't delay to invalidate presidential election if called upon to determine a similar petition.
“For as long as the Constitution has the provisions granting this court the mandate to overturn a presidential election in appropriate circumstances, it will do so because the people of Kenya in the preamble to the Constitution adopted, enacted and gave unto themselves the Constitution for themselves and future generations,” he said.
In its four-against-two majority ruling, the highest court in the country invalidated the outcome of the presidential election and ordered a fresh poll within 60 days.
However, President Kenyatta and members of his Jubilee Party were aggrieved by the decision and questioned the legality of the four judges cancelling the will of voters.
President Uhuru Kenyatta dismissed the judges as “crooks” and promised to revisit the decision.
"I think those robes they wear make them think that they are clever than the rest of us," President Kenyatta said, taking specific aim at Justice Maraga.
"Maraga thinks he can overturn the will of the people. We shall show you ... that the will of the people cannot be overturned by a few people."
However, Justice Maraga while reading the majority judgement said that under Article 1 (3) (c) of the Constitution, Supreme Court is one of those to whom sovereign power has been delegated.
“All of this court’s powers, including that of invalidating a presidential election is not self-given nor forcefully taken, but is donated by the people of Kenya,” he said.
Maraga noted that it would be a contravention of constitutional principles if the court dishonestly exercised that delegated power, adding that it would be a dereliction of duty if the court declined to accept the invitation to do so however popular the invitation may seem.
He said the court took a bold decision because, as judges they have taken an oath, as advocates first and as judges later.
“The legislature in its wisdom chose the words in Section 83 of the Elections Act and in keeping to our oath, we cannot, to placate any side of the political divide, alter, amend, read into or in any way affect the meaning to be attributed to that section,” he said.
“However burdensome, let the majesty of the Constitution reverberate across the lengths and breadths of our motherland; let it bubble from our rivers and oceans; let it boomerang from our hills and mountains; let it serenade our households from the trees; let it sprout from our institutions of learning; let it toll from our sanctums of prayer; and to those, who bear the responsibility of leadership, let it be a constant irritant.”
The four judges downplayed claims that by overturning President Kenyatta’s victory, the court lowered the threshold for proof in presidential elections.
“We do not think so,” the court answered its own question.