21 September 2017

Kenya: Key Points in Supreme Court Presidential Petition Judgement

Photo: Daily Nation
President Uhuru Kenyatta addressing delegates from North Eastern at State House, Nairobi on September 21, 2017.

The Supreme Court Wednesday delivered its full judgment on the nullification of the August 8 presidential election.

In a majority decision, the apex court chaired by Chief Justice David Maraga explained that it quashed President Uhuru Kenya's re-election because, among other reasons, the National Returning Officer Wafula Chebukati did not verify the results before declaring the winner.

The following are some of the key points from the judges' decision:

A ballot paper is counted as a vote if it is filled in accordance with the set procedure. The court observed that a rejected vote-- a vote which is void, a vote that accords no advantage to any candidate-- cannot be used in determining the 50-percent- plus-one threshold set in the Constitution for winning Kenya's presidential poll.

The court acknowledged the fact that no election is perfect and that the law recognises this reality. That said, it is difficult to categorise the violations of the law as "minor inadvertent errors". In their view, IEBC behaved as though the provisions of Sections 39, 44 and 44A of the Constitution did not exist.

That elections are not only about numbers. That, to arrive at a mathematical solution, as taught in school, there is always a computational path. That one has to prove that the process indeed gives rise to the stated solution. In short, the apex court said elections are not events but processes.

IEBC and its Chairman Wafula Chebukati failed to offer any plausible response to the question on whether all Forms 34A had been electronically transmitted to the national tallying centre as required by Section 39 (1C) of the Elections Act.

That IEBC CEO Ezra Chiloba admitted on August 14, three days after the declaration of results, that they were not in a position to supply the petitioner with all Forms 34A.

The judges rejected the explanation on failure of technology in the transmission of the presidential results and argued that this failure was, in their view, a clear violation of the law.

The electoral commission failed to grant access to two critical areas of their servers-- its logs, which would have proved or disproved the petitioners' claim of hacking, and its servers that contained Forms 34A and 34B.

IEBC's disobedience of the court's order left the judges with no option but to accept Mr Raila Odinga's claims that either the commission's IT system was infiltrated and data doctored or IEBC's officials themselves interfered with the data.

The judges wondered why the manually transmitted forms arrived faster than the electronic ones.

IEBC declared President Kenyatta the winner solely on the basis of Forms 34B, some of which were of dubious authenticity.

Nobody disputes the fact that on August 8, Kenyans turned out in large numbers, endured long hours in queues and peacefully cast their votes. However, the system thereafter went opaquely awry and whether President Kenyatta got a large number of votes becomes irrelevant.

That there was no convincing evidence to the effect that President Kenyatta acted in any inappropriate manner by releasing funds to people uprooted from their homes during 2007/08 post-poll chaos in Kisii and Nyamira.

That the illegalities and irregularities committed were of such a substantial nature that no court properly applying its mind to the evidence and the law could declare that they did not matter.

Mr Odinga claimed that various electoral offences were committed by IEBC officials but no evidence was placed before the court to prove the allegation. The judges, however, noted a systemic institutional problem but could not point "specific finger prints of individuals" who may have played a role in the mess.

That the judges were unable to impute any criminal culpability to IEBC, Mr Chebukati, commissioners or any member of IEBC.

That there was no evidence of misconduct on the part of President Uhuru Kenyatta.

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