We Will Revisit: Philomena Mwilu, the Sept 1 Ruling and the Noordin Haji Show

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It is the one-year anniversary of the Supreme Court of Kenya’s historic ruling, nullifying the 2017 presidential election. We probably would have completely forgotten the day, but the arrest and prosecution of Deputy Chief Justice Philomena Mwilu, on corruption charges, a few days ago, rudely thrust us right back to that dark period last year. It brought back memories of the day the President of the Republic of Kenya and his Deputy, openly insulted the Supreme Court Judges calling them wakora (Kenyan president, election overturned by court, attacks judiciary) and threatened that the State would ‘revisit’ the judges who had ruled in favour of the petition.

Although it may not be directly connected to the anniversary of the ruling of the Supreme Court, the Mwilu arrest has brought flashbacks of the mud-slinging that followed the Court’s verdict, not least, the persistent online bullying, probably led by Cambridge Analytica, with that memorable hashtag, #WakoraNetwork. The four Judges must have lived through a year of terror, the magnitude of which we we will only fully understand when they write their memoirs. As a victim of State terror myself, I can only imagine what their lives have been like. We should brace ourselves for more.

As I watched the news of the arrest of Lady Justice Mwilu, the events of last year flashed through my mind. I remembered clearly a telephone call on the morning of September 1, from a prominent politician. The call was to give me a heads-up on the decision of the Supreme Court, which was set to be announced in four hours. I remember the words so clearly – “we tried everything to change the minds of the Judges, without success.” Lady Justice Mwilu was blamed by my caller for corralling her colleagues around their oath to protect and respect the Constitution. Chief Justice David Maraga was accused of being too much of a Seventh Day Adventist, quoting biblical verses to nudge the consciences of those Judges that were still keen to serve the interests of their benefactors. The two were singled out as the ‘worst’, a term with which I was familiar: it had once been used to describe me, in a different context.

The four Judges must have lived through a year of terror, the magnitude of which we we will only fully understand when they write their memoirs. As a victim of State terror myself, I can only imagine what their lives have been like. We should brace ourselves for more.

And yet, a year after the sham 2017 elections, not a single individual has been prosecuted for the lives lost or the billions stolen. Instead, those that wilfully put the Supreme Court in a position to annul the result of the presidential vote continue to regale us with side-shows of ‘un-resigning’ and changing office locks to keep off opposing political camps from returning to work. And then comes Mr. Noordin Haji, the Director of Public Prosecutions (DPP), to further insult our intelligence by explaining to us in a sanctimonious statement, his reasons for going after the Deputy Chief Justice. We are now told that the Director of Criminal Investigations (DCI) has suddenly discovered files from 2013, wherein Lady Justice Mwilu is accused of corruption, abuse office and other offences. It begs the question of why she was cleared by the same agency that the DPP heads and by the DCI, for vetting for the highest Court in the land. And no, before you go there, it is not because we have the newly minted Mr. Noordin Haji, at the helm of the ODPP. The reasons appear to be insidious.

Mr. Haji probably thinks that one year is enough for us to forget the words of President Uhuru Kenyatta of ‘revisiting’ the Judiciary after the elections. He must think that we have forgotten the chills we had as we watched the president, dishevelled, with bags under his eyes, angrily threaten the four Judges. That we have forgotten the DCJ herself saying, “we were threatened, that is for sure because I don’t know how to clothe a lie”, last month in Mombasa].Mr Haji forgets that we saw the engineered tabloid stories that were meant to embarrass the DCJ. He must think that we have forgotten that on October 24, 2017 the DCJ’s official driver was shot, a naked attempt to intimidate her from attending a Supreme Court session the following day, which would have likely postponed the sham October 26 presidential election.Or it could be that Mr Haji is merely confident that we have ‘moved-on’ in light of the muzzling of the media, restricted space for civil society and the Kenyatta-Odinga handshake.

I remembered clearly a telephone call on the morning of September 1, 2017 from a prominent politician. The call was to give me a heads-up on the decision of the Supreme Court, which was set to be announced in four hours. I remember the words so clearly. We tried everything to change the minds of the Judges, without success. Lady Justice Mwilu was blamed by my caller for corralling her colleagues around their oath to protect and respect the Constitution.

This is by no means a defence of the integrity of Ms. Mwilu. Rather, it is questioning the real motive behind the charges against her and the timing. Having served in a Constitutional body, I know first-hand that our institutions are the epitome of cronyism and corruption. That is why they cannot possibly be independent. Despite the academic and professional credentials of the office holders, their selection, ultimately, is a product of high-level cronyism and corruption. This makes the office bearers vulnerable and prone to blackmail and all sorts of shenanigans. The Supreme Court has not been spared.

Stories abound of delegations led by politicians to State House to ensure that “one of their own” is appointed to the highest Court in the land, despite the fact that an ‘independent body’ is in charge of the process. I know for a fact, that for each senior official appointed to sensitive institutions, there are persons assigned to “manage” him or her. These persons could range from close friends, family members – including what Americans would call Baby Mamas and Baby Daddies – politicians, ambassadors, members of the security institutions, name them. It is their job to make the difficult calls and visits, deliver ‘envelopes’, as well as threats, when the cajoling fails to work. Theirs is an unenviable situation, depending on their assigned target. They often end up being politically ostracized and on the ‘chopping board’, to use one political operator’s words, when the State Officer fails to ‘deliver’. But they are richly rewarded when they succeed.

Mr Haji must think that we have forgotten the chills we had as we watched the president, dishevelled, with bags under his eyes, angrily threaten the four Judges. That we have forgotten the DCJ herself saying just last month in Mombasa: “We were threatened, that is for sure because I don’t know how to clothe a lie.”

With this knowledge, I find it difficult to accept the arguments put forward by Mr. Haji, who owes his current position to cronyism. We have been through this before, we can see where it is headed. The ground has been softened in the past few months in the purported fight against corruption. A narrative has been created, consent has been sought and tacitly accepted by Kenyans. We have been made to believe that we are in Season Two of the fight against corruption. We have been reminded that both the big and the small fish will be fried. Why should we decry the arrest of the Deputy Chief Justice? Is she untouchable? Those are the questions that the regime will pose as they go after those that humiliated them last September by “taking away” their victory. It is the narrative that they will use as they prepare the ground for the 2022 presidential race or, if the Kenyatta-Odinga marriage works, a Putin-esque amendment of the Constitution to maintain both men in leadership positions nullifying the promise made to William Ruto in 2013.

And in this pursuit, the regime has found a new face in Mr. Noordin. With his previous service with ‘the men from the shadows’, as John Githongo calls them, he has a lot of political capital to leverage. Over the past few weeks he has been able to pull off fantastic public relations stunts. He has obviously mastered the art of crisis management, by responding quickly, through a detailed written statement , to control the story. As expected, the media reported verbatim from his statement, which was also carefully crafted to exploit the anger that Kenyans feel towards the difficult economic situation, and to lay blame squarely on the doorstep of the DCJ – not the regime’s reckless economic policies of the past six years. He also made every effort to use the statement to portray ordinary Kenyans as victims of corruption, and his office as the long-awaited messiah.

The arrest and prosecution of Justice Mwilu was not presented in the same politically crude manner as President Abdulla Yameen of the Maldives did in February when he ordered the arrest and indefinite detention of the Chief Justice and a judge of the Supreme Court. The Supreme Court had dismissed cases against opposition leaders, including former President Mohamed Nasheed.

The arrest and prosecution of Justice Mwilu was not presented in the same politically crude manner as President Abdulla Yameen of the Maldives did in February when he ordered the arrest and indefinite detention of the Chief Justice and a judge of the Supreme Court. The Supreme Court had dismissed cases against opposition leaders, including former President Mohamed Nasheed.

Washington and London condemned President Yameen; the Maldives is not of sufficient strategic importance to Western interests for its leadership to get away with high authoritarian crimes. In President Kenyatta’s case, the new East-West global power contest will ensure that he will get a pat on the back and probably more State invitations to Western capitals. The President will brag to his benefactors, as he has done quite recently in a BBC Hardtalk interview, of the success of his “war on corruption”. He will evoke visions of a youthful President who has big dreams for his country – who is focused on his legacy and fixing the economy. Of a government that has taken charge of its domestic issues, including through the Kenyatta-Odinga marriage, and is destined for greater things, including a coveted seat at the United Nations Security Council. Bretton Woods will be fed reports of a government that has pulled all the stops to fight corruption without fear or favour, and is thus deserving of their assistance to fix the economic distress it finds itself in.To use the DPP’s words, it is a government that is “prioritizing and being strategic in our actions so as to achieve the maximum possible impact in the shortest possible period”.

For now, the show continues.