Ngumu Petition against DCJ Philomena Mwilu and Judge Isaac Lenaola could be dead on arrival

A Kenyan by the name Derrick Malika Ngumu has lodged a Petition against Deputy Chief Justice Philomena Mwilu and Judge Isaac Lenaola at the Judicial Service Commission. The Ngumu Petition alleges gross misconduct of the two judges in relation to the Raila Kalonzo petition that had the Presidential elections annulled, invalidated and voided. The Ngumu Petition has since given rise to a trending topic #WakoraNetwork hashtag over at Twitter and on the streets of Nairobi.

As expected, the Ngumu Petition has agitated Jubilee supporters leading them to hold demonstrations outside Supreme Court premises demanding for justice to be done. According to Jubilee, Judges Philomena Mwilu and Isaac Lenaola did not vote for the Raila Kalonzo Petition on the basis of fair hearing, but on the basis of undue influence as these two judges are being alleged to have had contacts with NASA lawyers and personalities when the petition hearing was in progress. As alleged in the petition, Deputy Chief Justice and his colleague Isaac Lenaola held contacts and meetings with Amos Wako who is an ODM Senator, James Orengo who was the lead lawyer of the Raila Kalonzo Petition, Moses Wetangula who is a NASA Principal among other NASA affiliated personalities.

Many that have seen the petition have termed it weighty. They reason that if indeed these two judges made undue contacts with the lawyers of Presidential Election Petition in the course of the Petition hearing, then they violated provisions of Judicial Code of Conduct and in particular the provision that states that “A judicial officer shall, in his or her personal relations with individual members of the legal profession who practice regularly in the courts, avoid situations which might reasonably give rise to suspicion of appearance of favouritism of partiality”.

However, there are those who have raised issues on the manner in which evidence of the alleged contacts was obtained. The evidence Derrick Ngumu has submitted include phone logs obtained from Safaricom, but it has not been indicated whether those phone logs were obtained through a court order or were obtained illegally. If the evidence was obtained illegally, then the petition is dead on arrival – says several commentators.

The Petition would be dead on arrival since the Constitution of Kenya in Article 50 that deals with fair hearing, in subarticle 4, provides that “Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.” Article 31 which deals with rights to Privacy states as follows:

Every person has the right to privacy, which includes the right not to have—
(a) their person, home or property searched;
(b) their possessions seized;
(c) information relating to their family or private affairs unnecessarily required or revealed; or
(d) the privacy of their communications infringed.

In the cases where an individual misuses their rights to communication, and information related to that communication is required as evidence, then the procedure is that the information must be retrieved through a court order. It is on the basis that the Constitution was violated when obtaining the alleged call logs that many consider Ngumu Petition as a Petition that is dead on arrival. This is a conclusion being reached despite the fact that in certain peculiar cases a police officer may be allowed to obtain certain evidences without seeking court warrants.

The angles to Ngumu Petition goes beyond its validity and strength, and beyond whether it is dead on arrival or not. There are those who have looked at the Petition with a lens to suggest that it is one of the most hi-tech propaganda ever orchestrated in Kenya’s politics. “How do you make propaganda more believable even to the author? Make it a petition and let the media houses report it as news. Then quote the news as your irrefutable source”, wrote Fredick Ombako over at Facebook.

As a propaganda tool, the petition is being seen as a move to discredit the Supreme Court Judges who voted to annul the reelection of President Uhuru Kenyatta. Once these Judges have been discredited, then no one will view the very ruling as free and fair. The goal therefore is to smear the character of the messenger in order to give grounds for rejecting the message. As rumours have it, Judge Smokin Wanjala is not out of the hook.