An advocate of the High Court, Kethi won the hearts of many Kenyans on social media and was the talk of town during the presidential election petition hearing by the Supreme Court. Last week she appeared on the acclaimed KissTV primetime news JSO @ 7 hosted by anchor John Sibi Okumu. Here is the transcribed interview by reporter Sharon Macharia
You represented the African Center For Open Governance (Africog) one of the petitioners against the results of the recently ended elections. Did you know from the outset that legally you were bound to lose?
Certainly not. The evidence that the Africog had and presented before the courts met the legal yardsticks for the nullification of the presidential elections. The constitution requires three things for somebody to be declared president-elect. One you have to be the popular candidate and get the majority of votes, two you have to get 25 per cent of votes in at least 24 counties and three you need to get 50 per cent plus one of all the votes cast.
Our contention was that the presidential declaration of the results did not meet these yardsticks but more importantly than the numbers is what the constitution requires that we should have a free fair and transparent election, and the measure of free, fair and transparent elections is not the number of votes the candidates gets.
The constitution and the law are very clear, that whatever voting method the IEBC choose it had to meet the yardsticks of simplicity, it had to be accurate, verifiable, transparent and accountable. It required the IEBC to announce the results promptly and in a transparent manner. The evidence we had showed that this presidential election did not meet the standards.
We don’t have the time to review the trial in 20 minutes but what I am saying from the layman’s perception, you anticipated the ruling?
Not at all. It’s fair for the judges of the Supreme Court to state that they have not given their reasons for their decisions. It is also fair for Africog to tell the public why they went to court and I will start with the register. According to IEBC on February 18, 2013 they announced that Kenya had 12,352,053 voters let’s say 12,400,000 voters. If you look at the returns for the 291 constituencies according to all the returning officers there were 13 million voters.
There is a difference of 1 million voters from the register and the people who were allowed to vote, not only that…
So the discrepancy in numbers?
Not only that. When the Supreme Court ordered for scrutiny of 22 polling stations in the petition filed on behalf of the immediate former Prime Minister, the IEBC came to court with green books. Do you know what that is?
No not entirely.
How many Kenyans do you think know about the green book?
None I presume, taking myself to be one of them.
The fundamental rule of an election says one man one vote, isn’t it?
If somebody walks into the polling station and they are not registered to vote and you are, you know by casting the ballot they completely render your vote…
Not invalid, unnecessary, nothing, you have done nothing. If one person votes in Langata and they are registered to vote and 1000 people are allowed to vote in Wajir and they are not registered that is a nullity.
This case has done something for your career, given you got a great deal of publicity. Otherwise we wouldn’t be having this conversation. But do you feel that at the end of the day it was not a worthwhile exercise?
Oh no it was. Let me take you back to the evidence before the court. There is a school in Kieni Constituency in Nyeri county called Charity primary school. According to the IEBC register it had one voter. However in what they call a special register 321 people voted at the school and you can’t account for them from the register or from the special register…
Let’s talk about the 900-page affidavit. Couldn’t the evidence have been condensed into three standout proclamations that we would have all accepted as well the Supreme Court judges?
The 900-page affidavit was filed in the other petition and I will not speak as to the content of that affidavit but that brings into question the reason why we brought in a new constitution as Kenyans. Why did we go for the referendum? One of the key articles in the constitution is when administering justice you must pay regard to substance not technicalities.
The question is, in making that decision about that affidavit were they guided by the substance or technicalities? And you must give it to them John. They had 14 days only, they had mountains and mountains of evidence.
But at the same time with respect, they were congratulated specifically for having done a tremendous job in record time, as if of its very nature this idea of doing it quickly deserved some kind of commendation. As we go forward can we not have alternative time lines that are more realistic? Why come up with a judgment in two days? Were the constitution fathers and mothers wrong?
Not at all, in fact I think the time lines are perfect John. For the simple reason the Constitution has found a transitional method of one government to the other. As we speak we have a president and a president-elect.
The Constitution states that until a candidate who has gone to the Supreme Court has successfully challenged the election or not the president-elect can’t be sworn in. It is important, very important, that this process is completed quickly because can you imagine if the Supreme Court was still sitting and the president is sworn in.
I would argue that you are arguing my corner more successfully than I am. I said from the word go everything had to happen quickly. If you did not meet that yard stick you knew that the ruling would go against you.
One of the affidavits we produced in court had an audio visual recording showing that the results announced at the county level were not the results announced at the Bomas of Kenya. It showed that there was a difference of 1000 votes for one candidate and less four or 500 for another candidate.
The question is this, if you have a result that is announced at one level and it is different when announced at the national level do you take in to account the difference? Or do you ask yourself at what point were these results changed? And is it the only result that was changed? No, we had more evidence of the same. John there is evidence out there and we are all waiting to see what the court decided on this evidence. For me I think the biggest disservice to everyone involved is the fact that we are going to have a president-elect sworn in without a pronunciation on why the election was valid.
You could argue that in giving a five- minute judgment the Chief Justice was actually doing us a favour. We are not going the way of the American Supreme Court where you listen to hours and hours of legalese and then at the end of the day the case is dismissed. We are moving the process forward, we will tell you why we dismissed the case but since you want to know who came on top of the class, who won the prize this is it. All these petitions are dismissed and we moved forward.
This brings us to 2007 when the biggest issue was who finished first. That is what the 2010 Constitution wanted to cure; that it’s not the end that justifies the means, the means is more important than the end. When we look at the question of technicality, procedure versus substance we have a ruling. But does the ordinary Kenyan in Nyeri, Mombasa, or Nairobi know why the petition was not successful?
As we wait patiently for this ruling in its entirety. As a representative of civil society, it seems the civil society therefore has lost in absolute terms, how do you think it might redeem itself in the coming five years or is this the end of the road?
No, this is the beginning of the road because, the civil society has no political interest, they have no political state, the reason why Africog filled this petition was not to support or to oppose one candidate it was to help in the implementation of the constitution. The questions about IEBC, there is a question about the whole procedure because everyone wants to look at these reasons and scrutinies.
Our institutions John will not grow if we do not have the courage to question what they do because that is the reason why we pay so much taxes so that they deliver. The budging now moves to ICC why did the systems fail? And how do we fix it?
The supreme court when they give their reasons, are these reasons valid? But its important as we speak we have a ruling, that petition has come to completion the candidate who was second has accepted that petition but it cant stop there John. I am sorry it can’t.
What are your thoughts on the new judiciary?
The judiciary has changed, its not the same judiciary that we had John. Things have improved and will continue to improve. It’s important that we go back to the constitution and that courts deliver justice not procedure. It is very important people are able to understand what is going on in court.
The people feel welcome and they don’t feel as if you have to be an advocate to represent your case. You will be surprised that I have seen lay persons who do a better job than advocates in court in representing their own cases. I think we conducted ourselves well John.
In you Kethi Kilonzo as a woman the focus has been more on your private life, your marital status, your mode of dress. Maybe the word feminism is a proffered in this case. Do you think that this is the reflection of a mature society to bring you down? How do you respond to that?
It’s unfortunate that society will take such an approach. It’ even more unfortunate that even we women ourselves tend to look down at ourselves first. Like how does her hair look? What shoes is she wearing? but the approach I take is this, when I wakeup in the morning I don’t wake up as a young woman I don’t wake up as a young person,
I don’t wake up as a pretty person. I wake up as Kethi Kilonzo and go and work as Kethi Kilonzo. The way I look at it is God has given everyone a special talent, whether you are a man or a woman, and its your work to develop that potential so for me it doesn’t matter. When I walk in somewhere it’s Kethi Kilonzo walking in and I try to carry myself professionally and to do my work as Kethi Kilonzo to my full potential.
You emerged from this whole process as something of a role model going beyond your presentation and your physical appearance you have become a role model for young girls. Is this a role that you will readily assume because it is not going to go away in the fullness of time, the spotlight is going to be for ever upon you. What are the lessons that you might give to young girls watching now wanting to become Kethi Kilonzo.
Well I would encourage them not to become Kethi Kilonzo. I would encourage them to try and reach their maximum potential and find out what their gifts are? What their talents are? And develop that. More importantly they have work hard, very hard and work smart.
Have you had to fight obstacles in this day and age as a very final comment for being what you have chosen to be. Is there a great dismissal within the bar at the bench where you operate against women?
It is difficult John simply because the kind of profession we are in takes a lot of time and that is not conducive to somebody who needs to bring up a family so you make a choice whether to go for your career in full whether to go for your family in full or try and strike a balance.
When I walk home, or drive home at 4-6pm my male colleagues will drive straight to a bar or a club to socialise or interact. That is where business is discussed and made so there is a distinct disadvantage but that is neither here nor there. We just work as hard during the day as they are nursing their hangovers in the morning and try and catch up.