In 1990, for thirty days and on a diet of sugarless porridge, no blankets to shelter him from the cold and no access to a toilet, Justice Mohammed Khadhar Ibrahim—then a young advocate and partner at Messrs Waruhiu & Muite Company Advocates—was detained in solitary confinement at Kamiti Maximum Security Prison.
It so happened that on 5 July 1990, two days before what was later christened ‘Saba Saba Day’ that went down at the historic Kamukunji Grounds in support of the pro democracy forces, the infamous Special Branch, President Daniel arap Moi’s secret police, visited Electricity House which housed the offices of Messrs Waruhiu & Muite Company Advocates in search of Paul Muite, the then Law Society of Kenya (LSK) chairman and senior partner. But as luck would have it—for Muite and not Ibrahim—Muite was out of his office.
Ibrahim was arrested and detained at Nairobi Area Police Station before being transferred to Kamiti on orders of Jackson Harvester Angaine, a then powerful former minister of State in the Office of the President. The detention order decreed that Ibrahim had been “involved in subversive activities aimed at undermining and overthrowing the Government of Kenya.” So, for 30 days, Ibrahim was a guest of the state, detained without trial.
Ibrahim’s arrest, he has often told, shunted him deeper into the liberation movement and shaped his philosophy on working towards a just society.
Incidentally, Ibrahim, classmate to former National Assembly Speaker Justin Muturi at the University of Nairobi’s Law School’s Class of 1981, finds himself at the apex court, twice captained by former pro-democracy activists. First in former Chief Justice Willy Mutunga, an ex-detainee under the rule of the late President Moi and second, under the current Supreme Court President Martha Koome, former chairperson of Federation of Women Lawyers (FIDA) and who at one point attempted to sue President Daniel arap Moi.
And in a twisted but almost comical way, for Ibrahim, the Supreme Court is one long trip down memory lane.
Over and above working with his comrades-in-arms, Ibrahim sat in the six judge panel adjudicating Kenya’s first presidential election petition in March 2013, in which one of the respondents was his former firm partner, the inaugural Independent Electoral and Boundaries Commission (IEBC) chairman, Isaack Hassan. In 1994, Justice Ibrahim had founded Mohammed Ibrahim & Associates and later partnered with Isaack in 1997, to establish Ibrahim & Isaack Advocates. The petitioner on the other hand, was Raila Odinga, the presidential candidate for Orange Democratic Party (ODM) with whom they had been arrested in 1990 in the lead up to the Saba Saba rally.
Among the first Kenyans of Somali descent to be admitted to the bar, Ibrahim has been wholly committed to advancing the cause of equality, and particularly that of the Somali Community in Kenya. In 1989, when the Kenyan government called for a citizenship verification exercise which involved screening Somalis living in Kenya in an attempt to ascertain those considered indigenously Kenyan Somalis, Ibrahim fought vehemently against it. Between 13 November 1989 and 30 March 1990, individuals brought their identification documents and answered questions, some as arbitrary as reciting genealogies, before a panel of elders. Those who were deemed to belong to a lineage ‘indigenous’ to Kenya were then issued pink slips that were to serve as proof of citizenship. Those declared ‘non-citizens’ were to be repatriated to Somalia.
Before the promulgation of the 2010 Constitution, the head of state had unfettered powers to appoint members of the bench—that power now lies with the Judiciary Service Commission. A time came, twice actually, when Ibrahim was offered a place on the bench but he declined. According to him, he did so on the grounds that “he did not want to serve in the single party days of governance.” It was only until the government of President Mwai Kibaki came into office that Ibrahim heeded the call and was appointed as a judge of the High Court on 22 May 2003, his first station being the Civil Division of the High Court in Milimani.
A year later, Ibrahim was dispatched to the newly established Judicial Review and Constitutional Division of the High Court, where he remained until he was transferred to the High Court in Eldoret in 2006. Ibrahim’s time in Eldoret as the Resident Judge had him criss-crossing the entire North Rift Valley and occasionally lending his services to the High Court in Kisii. He did this for two years, before being deployed to Mombasa in July 2009, which was also his last station as a judge of the High Court. It is in Mombasa that Ibrahim made one of his most controversial rulings.
On the morning of 3 March 2009, upon the high seas of the Indian Ocean, nine Somali pirates seized the German merchant vessel MV Courier. The mission was however foiled by International Anti-piracy forces, the men arrested and handed over to Kenyan government on 10 March 2009 to be prosecuted. As fate had it, the arraignment was before Ibrahim.
In his ruling, Ibrahim remarked that the law under which the nine suspects were charged did not provide for a definite explanation of what constituted the ‘high seas’ and therefore, that it cannot be a place in Kenya or within its territorial waters. Ibrahim ordered the men to be released and repatriated to Somalia. The ruling was overturned by the Court of Appeal and in 2013, the men were sentenced to serve five years in jail.
It was on the backdrop of this that in 2012, Ibrahim—who was by this time one of the seven judges of the inaugural Supreme Court—faced an attempt by the Judges and Magistrates Vetting Board (JMVB) to axe him from his position. Chaired by Sharad Rao, a former Deputy Prosecutor in the office of the Attorney General, after a rigorous grilling session, the Board had declared Ibrahim unfit for service and had recommended his removal from office. At the time of the vetting, Ibrahim had 264 matters at the High Court, some dating back to 2004, where his judgements and rulings were still pending. According to the board, Justice Ibrahim had “indubitably, and irremediably shamed the judiciary with his failure to deliver on cases.
By some stroke of luck—and one that raised eyebrows within the corridors of justice—a few months later the JMVB reneged on its July 2012 decision and Ibrahim survived just in time for the first ever presidential petition at the Supreme Court under Chief Justice Willy Mutunga. Eyes were now on the man who in his interview for judge of the Supreme Court in 2011, had had to defend his past that framed him as anti-government. Ibrahim, in his rejoinder, cited that he believes in government which is why he wanted to be part of it. The petition was the chance to show his critics where his loyalty lie.
And when the time came for Chief Justice Mutunga to bid the apex court goodbye after opting for early retirement, Ibrahim was the man hand-picked to temporarily hold fort until Mutunga’s replacement was found. From June to October 2016 when Chief Justice David Maraga took up office, Ibrahim was the acting president of the Supreme Court of Kenya.
One year later, Maraga and Ibrahim would sit together in Kenya’s 2017 presidential election petition. However, Ibrahim was taken ill on the second day of the hearings, going on to miss the rest of the proceedings and subsequently having his name missing in the annals of jurisprudential history stamped by the Maraga Court with the annulment of President Uhuru Kenyatta’s 8 August win.
Having missed the 2017 election petition, Ibrahim, who is currently the Supreme Court representative to the Judicial Service Commission and the chairperson of the Judiciary Committee on Elections, will be looking to assert his quiet and methodical reasoning in the 2022 presidential election petition, badges earned from being the old hand on the bench.