One might not be faulted to say that Justice Thande Mugure was only known to those close to her, and perhaps advocates and litigants who have appeared before her.
However, the 58-year-old judge who has rattled President William Ruto’s administration isn’t new to bold verdicts. The ruling party and the electoral commission have in the past been on the receiving end of the Kianda High School alumna who has been in the legal profession for over three decades, and so has the Chief Justice Martha Koome-led Supreme Court.
But the judge is now a popular name among many Kenyans after granting orders, twice, stopping Treasury Cabinet Secretary Njuguna Ndung’u from implementing the controversial law that imposes higher taxes on fuel and new deductions including housing levy for salaried workers likely to worsen runaway cost of living.
The judge, who joined the Judiciary in May 2015 from private practice, had temporarily stopped the government on June 30 from implementing the Act, a few days after President William Ruto had signed it into law . Rattled by the decision, the government through Attorney General Justin Muturi picked a battery of lawyers including his predecessor, Prof Githu Muigai, senior counsel Kiragu Kimani, and Mahat Somane, in a bid to convince the judge to lift the suspension.
But after hearing arguments from litigants and advocates for more than four hours, Justice Thande maintained her position and refused to lift the freeze on July 11. She stated that the prejudice that will be suffered by the public by being subjected to a law that may ultimately be determined to be unconstitutional, outweighs the prejudice to be suffered by the government by far, if the petition were to fail.
“I am, therefore, satisfied that notwithstanding the presumption of constitutionality of legislation, there is merit in granting conservatory orders in respect of the Finance Act under challenge,” the judge said.
The judge then certified the case as raising substantial questions of law and referred the matter to Chief Justice Martha Koome for appointment of a bench of judges to determine the case. This was despite submissions by Mr Kimani that the application for certification was like ‘kicking the matter into the long grass’, as the case is likely to stall before the bench is picked and makes a determination on the matter. The decision has roundly been criticised by President Ruto, his deputy Rigathi Gachagua and their allies.
But Justice Thande is no stranger to controversy. Five days to last year’s presidential election, she delivered another landmark judgment to protect the rights of all eligible voters, despite protests by the electoral commission and the United Democratic Alliance (UDA) on whose ticket Dr Ruto would subsequently win the presidency.
Implementation of Finance Act remains suspended, court rules
Mr Chebukati, the presidential election’s national returning officer, had made the statement in response to concerns raised with IEBC on June 5, 2022 by Azimio La Umoja One Kenya Coalition Party, which fielded Mr Raila Odinga as its presidential candidate.
"In 2017, the commission strongly argued for the need of manual identification of voters and transmission of results as a complimentary system yet in this election, it is taking a totally and exactly opposite position," Mr Odinga subsequently told Mr Chebukati in a letter dated June 22 2022.
Concerned the outlawing of the use of the manual register would deny eligible voters their right to vote on account of lack of fingerprints or technological failure, seven rights groups lodged a constitutional and judicial review petition at the High Court.
They sought an order compelling IEBC to provide a manual register of voters in every polling station as a backup to identify voters in the event of failure of the electronic voter identification devices.
But Dr Ruto’s UDA, which was an interested party, opposed the petition in a replying affidavit sworn by the then Secretary General Veronica Maina. Ms Maina is now a nominated Senator.
UDA supported the position taken by Mr Chebukati and the IEBC for the petition to be dismissed, arguing the petitioners had not demonstrated the probability of failure of the Kenya Integrated Elections Management System (KIEMS). Justice Thande observed while Section 44 of the Elections Act provides for the use of technology in the election process from registration and identification of voters to transmission of results, “technology can and will fail, and did indeed fail in the 2013 general elections.”
The judge cited the Supreme Court finding during the 2013 presidential election filed by Mr Odinga that “it is common ground that even the best technology can fail; it was also admitted that in the conduct of 2013 general elections it largely failed and it can also be interfered with through criminal and human elements.”
Following the failure of technology during the 2013 elections and in order to forestall the risks associated with technology hitches in subsequent elections, Parliament had enacted Section 44A which compelled the IEBC to “put in place a complementary mechanism for identification of voters that is simple, accurate, verifiable, secure, accountable and transparent.”
“The 1st Respondent (IEBC) has made a decision that is in violation of the Constitution and the law and indeed its own internal memo,” Justice Thande ruled, referring to an internal memo dated July 27, 2017 authored by then IEBC chief executive officer Ezra Chiloba (now Communication Authority’s Director-General) and addressed to poll officials prior to 2017 polls.
The memo set out three modes of identifying voters; biometric, the complementary mechanism of alphanumeric search and the use of the printed register of voters, and would feature in a Court of Appeal elections case involving the National Super Alliance (Nasa). Nasa, Mr Odinga’s coalition, subsequently successfully petitioned the Supreme Court to nullify then President Uhuru Kenyatta’s re-election in 2017, citing unconstitutional conduct by the electoral commission.
President Kenyatta won a fresh election in October 2017 that Mr Odinga boycotted. In the ensuing post-election crisis, President Kenyatta in March 2018 struck a truce with the opposition leader.
This ceasefire, referred to as handshake, would escalate a fallout between President Kenyatta and his deputy, Ruto, culminating in last year’s acrimonious presidential election that Dr Ruto won after trouncing Mr Odinga who had the backing of the outgoing president. President Ruto is now battling opposition protests led by Mr Odinga and his running mate Martha Karua, who have branded the Kenya Kwanza administration illegitimate and demanded an audit of election servers alleging last year’s presidential vote was rigged.
Despite the Supreme Court upholding Dr Ruto’s election as Kenya’s fifth President, Azimio politicians, capitalising on mounting public discontent over the runaway cost of living and numerous new taxes imposed by the Finance Act, are orchestrating mass protests and collection of 15 million signatures to discredit the government.
In the verdict on the row over the manual voters’ register, Justice Thande went on to state on August 4, 2022: “A declaration is hereby issued that the decision of the 1st (IEBC) and 2nd (Mr Chebukati) respondents signified by the letter dated 10.6.22 stating that the 1st respondent shall not use manual register of voters in the General Elections on Tuesday 9.8.22 is unconstitutional and the said decision is hereby quashed.”
And earlier before the General Election last year, Chief Justice Koome came up with rules- the Supreme (Presidential Election Petition Amendment Rules) 2022, barring advocates and litigants from making comments on the presidential election petition, while the case is yet to be determined. The rules were challenged in court and Justice Thande agreed with the petitioner, lawyer Omwanza Ombati, that their development was unconstitutional as it amounted to usurpation of the authority of Parliament. Justice Koome had defended the rules, saying the rules, which were gazetted on April 12, 2022, were meant to ensure both the dignity and independence of the court is maintained. Justice Koome said the intention was not to take away the freedom of expression.
But Justice Thande differed saying while it is accepted that the Supreme Court should be given the leeway and space to exercise the powers conferred upon it by the Constitution, such power must be exercised within the ‘four corners of the Constitution and without usurping the powers of other constitutional entities’.
“I find that in making the impugned rules which contain a penal provision that is enforceable by the court, the Supreme Court went beyond its authority and usurped the law-making role of Parliament,” the judge said.
The judge said it was evident from the material before the court, including the CJ’s own admission, that the Supreme Court did not conduct public participation in any form or shape, before the promulgation of the impugned rules, which is contrary to the the Constitution. While in Mombasa, the judge dismissed a case brought by a man challenging the distribution of their late father’s property, stating that Sharia law, which excludes women, children and non-Muslims from inheriting their fathers’ and husbands’ estate, was not in violation of the constitution.
The judge held that the presumption of marriage as a concept was unknown in Islamic Sharia and any cohabitation outside marriage was considered as condemned as illicit and the woman involved in it was punishable for Zina (fornication).
Justice Thande further held that referring to any child as illegitimate appeared to be outrageous, however, as long as the estate belonged to a deceased Muslim and as long as article 24(4) remained in the Kenyan Constitution and further as long as section 2(3) remained in the Law of Succession Act, the court’s hands were tied.
