By Morris Kiruga
If Okiya Omtatah, the prolific public interest litigator, had had his way, Kenya would have held its seventh multiparty elections in August 2021.
In 2018, he and another activist filed a case arguing that the August 2022 date would be too late.
They focused primarily on how to count the calendar. Our decade-old constitution clearly states when elections are to be held, down to the day of the week and the exact month.
And that was where everyone else was wrong, according to the activists. Or at least whether “the second Tuesday in August in every fifth year” fell in 2021 or 2022.
The second Tuesday of August 2022, they argued, would give the current elected leaders a few days over their five-year term limit.
They obviously lost, but the grounds on which they went to court offer an interesting perspective of just how our electoral systems work.
Nearly every aspect of elections within our current laws is based on stopping something that had happened before—under previous laws, the president essentially determined the date of the elections, allowing him and his allies to control the calendar, and with it, how well anyone seeking to unseat them prepared for the process.
The president’s hold on the other arms of government, particularly the lasting chokehold on the judiciary that didn’t abate until the 2010s, also meant that there was little recourse for fringe but important issues, such as dates but also, presidential petitions, to be taken seriously.
Our collective memory of the last general elections will most likely focus on the Supreme Court judgement which annulled the August 2017 elections and demanded fresh polls in September, but the issues that ruling raised weren’t settled properly until mid-December 2017.
In November, shortly after the October repeat elections that opposition leader Raila Odinga and at least two dozen electoral zones boycotted, several activists went to court over a simple but necessary question.
The question was whether the court’s ruling should have, and it does make some sense, meant that political parties should have conducted nominations afresh.
Before that, in the 2013 elections, among the most quietly watched cases were those that tried to have Uhuru Kenyatta and his running mate, William Ruto, disqualified because they were facing serious charges of crimes against humanity at the International Criminal Court.
These cases, of course, are now mere footnotes in history. But for public interest litigants, and presidential candidates, trying to prosecute issues as contentious, emotive, and expensive as elections, sometimes the loss is in fact somewhat of a win.
It makes more of a political statement about the true state of things, which is at times the point.
In the three decades that Kenya has held multiparty elections, presidential results have been challenged in court every time but twice-in 2002 and in 2007.
Of those exceptions, only 2002 wasn’t contested anywhere, because the margin of victory and winds of change made it impossible, and even immoral, to do so.
The 2007 elections, on the other hand, were the most contested of any of our elections, fought not by eloquent, highly paid legal minds before learned men and women in robes, but on the streets, in parliament, in homes, churches, and apparently, the electoral chief’s face (two ICC witnesses swore they saw him get slapped).
Several petitions were filed after the first multiparty elections in December 1992.
The most important of them was by Kenneth Matiba, the wealthy former minister who had quit his Cabinet post in 1988 and become the face of the Second Liberation.
That case was thrown out on a technicality-the candidate, who had suffered at least one stroke while in detention just two years before, had been too sickly to sign anything himself.
So, he had assigned power of attorney to Edith, his wife, and she had signed everything from his nomination papers to the suit papers.
Matiba was at the time the most formidable opposition politician, heading a breakaway opposition party, but even that could not save his candidacy or his case.
He boycotted the next elections, and then faded away from the limelight. By the time he made it back to the ballot, in 2007, he polled a far-off eighth.
A second case, by the lawyer Gitobu Imanyara, was also dismissed on the grounds of ‘late service by a day.’
One of the few cases that went to full trial was another by a young James Orengo, then one of the firebrand legal minds within Jaramogi Oginga Odinga’s Ford-Kenya party.
By then, the elder Odinga’s once shining national political star had faded after decades of state harassment, and he had polled fourth.
Orengo argued that Moi should have been ineligible to run in the elections because he had already served more than two terms in power.
He lost, on the basis that the law that freed Kenya’s politics from a one-party system had been done “with [a] focus on the future.”
It’s the fourth case though, and the second one that went to full trial, that I’ve always found the most intriguing.
In the aftermath of the elections, John Harun Mwau filed a petition against Moi’s declared win, as well as the eligibility of every other candidate except himself.
The leader of a new, fringe political party called the Party of Independent Candidates of Kenya (PICK), Mwau had polled sixth in the elections, behind Moi, Matiba, Kibaki, the elder Odinga, George Anyona, and the surgeon Dr. Chibule wa Tsuma. But his focus was not on the outcome itself, but in the process specifically, foolscaps.
Specifically the ‘forty standard sheets of foolscap papers’ that the law said all presidential candidates had to supply with signatures to defend their nominations.
He wasn’t even focused on the content of the paper itself, but the type of paper.
Election rules clearly said that presidential candidates had to provide the nomination lists on ‘forty standard sheets of foolscap papers.’
And Mwau’s argument, which stayed within the corridors of justice until just months to the next elections, was that he should be declared president because only he, and this was true, had actually followed that part of the law. Everyone else had done it on A4 paper.
“If you are referring to the foolscap issue this is not laughable,” former Chief Justice Willy Mutunga wrote to me in an email, “it was Mwau genius to tell the courts the since they were bent on technicalities why did they accept that one.”
The truth, I wrote back, is that I’d never thought of it that way.
I’d always thought that Mwau, an industrious man if there ever was one, had simply found the route of least resistance to the presidency. Seen in the light of the way the courts had dismissed other petitions based on technicalities, Mwau was daring the judiciary to follow the most basic rules.
It wasn’t really about paper, or the presidency, or even the far-off possibility that there was a court in place at the time that would have done what he was asking.
“I believe it’s the court that had a rotten egg on its face,” the former CJ added, because it couldn’t follow its own focus on technicalities in electoral petitions and cases.
John Harun Mwau – former policeman, Olympian, presidential candidate, founding head of the Kenya anti-corruption commission, legislator, assistant minister, subject of a US President’s Executive Order-is also, the former CJ reminded me, ‘the father of public interest litigation’ in Kenya.
Among the first cases he filed was a petition to get his passport, which had been withdrawn in the early 1980s, back.
The courts, then attached to the government in many ways, refused to give such orders, and the issue was only resolved in the 2000s in a different case that’s now an important part of how we understand the concept of freedom of movement.
Mwau hired young, ambitious lawyers and did a lot of research himself, and his name appears in many public interest judgements ranging from passports to elections, starting from at least the 1980s to date.
Public interest litigants occupy an interesting space in the process that is Kenyan elections, and by extension, the entire legal structures within which we live.
Their place is somewhere between the helpless Kenyan who does not know his rights or can’t defend them, and the elite actors who do but work against them anyway.
Today, there is a long list of individuals and organisations who are prolific at filing such cases, and sticking with them to the end.
They pay attention to what might be fringe issues to political actors in the heat of things, and their constituencies, chasing down how our electoral bodies procures electoral materials, who exactly gets to seat on those bodies, and just about any issue that comes up but isn’t deemed worthy of the attention of our elected representatives.
They are also not easy to define, especially because many double up as activists outside the courtrooms.
In early 2008, for example, the activist Okiya Omtatah famously chained himself, complete with a padlock, to the steel fence of police headquarters on Vigilance House.
It was a non-violent action in a traumatised nation, and many who can remember that day most likely do not remember the reason. Even I had to look for it on Google. [He was protesting the use of live bullets by police on protestors].
And as activists, their work is not without risks. Omtatah lost several teeth and suffered head injuries in 2012 for questioning the cost of BVR kits, a tech tool meant to put us as far away from the security risks that were manual voting systems, to make each vote matter (it hasn’t).
Not that it stopped him; last June, he filed another case is seeking orders to block the IEBC from single sourcing the contract for printing ballot papers to be used in next year’s elections. https://www.the-star.co.ke/news/2021-06-27-omtatah-sues-over-iebc-deal-for-ballot-papers/
On the larger scheme of things, such actions seem like obscure events that play little to no role in determining the political structures of the country we live in.
And the wins seem small-for example, the future legislator Priscillah Nyokabi, acting on behalf of Kituo Cha Sheria, won a case in 2010 that is the reason why prisoners can now vote.
The victory was huge for non-governmental organisations that had been working on it for more than a decade, but barely registers now because the guests of our state are not a remarkably important, by numbers or ethnicity, to matter on the ballot.
But some wins are significant, such as the ongoing legal processes that have halted the BBI process in its tracks.
The case by the economist David Ndii, the activist Jerotich Seii and other activists did what seemed for at least two years impossible, stopped an elite-driven clamour for constitutional changes that was highly suspicious, unnecessary expensive and distracting, and clearly driven by short-term interests.
Such public interest litigants are a core part of our modern law-making process, and an important part of our social fabric.
They pay attention to things we should but can’t, and at times don’t want to.
They have filed cases, and built organisations, on many aspects of social justice covering not just politics and elections, but environmental laws, extra judicial punishment, and human rights.
In our messy electioneering process, where politics often trumps justice, public interest litigants are the people’s quiet, messy, and misunderstood defenders.
They might not be the heroes we want, but they are among the very few we have.
Morris Kiruga is a writer, editor and researcher based in Nairobi, Kenya. His articles have appeared in numerous publications such as The Africa Report, The Guardian, The Elephant and Jeune Afrique. He covers history, business, culture and investigative topics.