November 23rd 2017

Top Stories / 2017 Elections

Supreme Court judges enumerate IEBC flaws, say Uhuru numbers fake and irrelevant

"Where do all those irregularities leave this election? It is true that where the quantitative difference is manageable, we should not disturb the election. What if the numbers raise many unanswered questions? The quality is as important as the quantity."

By John Onyandojonyando@kenyafreepress.comWednesday, 20 Sep 2017 17:27 EAT

The judges get ready to deliver their individual judgments early this afternoon.

The Supreme Court judges finally read their detailed ruling on the Raila Odinga presidential petition this evening, ending nearly three weeks of speculation as to what they would recommend in safeguarding the intergity of the electoral process. In light of the recent campaign to besmirche their reputations, the majority judges affirmed the centrality of the Supreme Court, and the judiciary in general, in providing checks against the abuse of authority invested in public officers.

The chairman of the electoral commission IEBC, Wafula Chebukati, was thoroughly indicted by Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu and Justice Isaac Lenaola, whose ruling gave weight to the constitutional and legal requirements for a free and fair election. The three judges held that the process of the election was so shrouded in illigalities and irregularities that made the final result declared by IEBC unreliable.

The judges held that the chairman signed a fake Form 34C which was used to declare the result of the presidential election. The Form was not in the manner prescribed in the law and it was arrived at without the receipt of the election results from over a quarter of polling stations.

DCJ Mwilu provided the most detailed examination of IEBC failures. "The first respondent used forms 34B as opposed to forms 34A in declaring the presidential results...according to the IEBC, they modified forms 34C to 34B and used these as source documents to determine winner instead of using form 34A," she said, explaining that this was done in order to conceal the lack of Forms 34A which is the primary document for the declaration of election results.

"Why was IEBC unable to supply forms 34A, that were said to be 11,000 in number, four days after the election results? Why would it have been impossible to avail the copies to the petitioners?" asked the judge. Raila's lawyers told the Supreme Court that IEBC arrived at the result of Uhuru's win then worked backwards to generate primary Forms, hence the delay in providing them.

"Neither the first nor second respondent provided a sufficient response as to whether all forms 34As had been transmitted to the tallying centre", she said, and, in confirmation of the court-ordered scrutiny, held that most forms supplied "were of dubious authenticity."

The DCJ and Justice Lenaola agreed with the petitioner's position that the IEBC servers were either hacked or improperly used by unauthorised persons, holding that the commission's disobedience of a court order for the opening of the server left them with no option but believe that IEBC was hiding something.

"IEBC should have had backups. We gave the petitioner a read-only access but there was clear reluctance on the IEBC's part that they did not want to give the information." The order of scrutiny "was a golden opportunity for IEBC to discredit the petitioner's claims but they disobeyed the court order."

This finding was based on the principle that when a decision maker fails to avail before Court evidence it had relied upon to make the decision being disputed, the Court can believe that either the evidence was never there in the first place so the decision was taken arbitrarily, or in the alternative, it exists but it does not support the decision that was taken.

The court therefore held that information in IEBC servers was favorable to the petitioners NASA had alleged and adverse to the position taken by the IEBC. NASA had said in the court that if the IEBC servers produced any outcome not showing a Raila win of the election, they would concede defeat on the spot. IEBC refused to meet this challenge, yet the burden had shifted on it to prove the peititioners wrong.

The fourth judge on the majority side, Justice Smokin Wanjala, was not in court to read his judgement but provided a signed copy. Justice Njoki Ndungu, who with Justice Jacktone Ojwang' dissented from the majority decision, was still reading her judgement by the time this report was finalised, but Prof Ojwang' had tendered his.

The main thrust of the majority opinion was that the constitutional requirement for a free and fair election was non-negotiable, that the irregularities and illegalities commited by IEBC were such that the final results announced were unreliable and cannot be held in high currency. CJ Maraga said: "Where do all those irregularities leave this election? It is true that where the quantitative difference is manageable, we should not disturb the election. What if the numbers raise many unanswered questions? The quality is as important as the quantity."

The CJ said that "the greatness of a nation lies not in the might of its army or its economy but its fidelity to its constitution....It is our finding, irregularities by IEBC would, in any court applying its right mind, be found unconstitutional." Justice Maraga took the high ground, saying the law was for a purpose. If the IEBC conducted another election without due regard to the requirements of the Constitution and applicable laws, the court will again declare it null and void. 

According to legal analysts, the jurisprudence established by the Court will establish a high standard for the holding of elections, including strict observance of the constitution and electoral laws and regulations. The judges found that the election was not affected in simple administrative ways but officials of IEBC went out of their way to subvert the process.

They found evidence of massive voter intimidation and abuse of power by other organs of the government. Specifically, they found that IEBC fell far short of constitutional requirements that an election be open, transparent, verifiable.

Specifically, the found that Chebukati declared a President without actual results, using suspicious figures that were later disowned by the commission in court.

They found that Uhuru Kenyatta was declared a winner without Forms 34A and 34B which in respect of the election accounted for more than 3.5 million votes.

On the minority side, Justice Ojwang, who took nearly the same amount of time as that taken by Maraga and Lenaola combined, held that focus should be on the numbers of an election first, whittling down the role of constitutionally stipulated qualitative thresholds.

Prof. Ojwang said the burden of proof lies with the petitioner and that the threshold of annulment of a presidential election must be very high. To this end, he said Raila had raised vague and unsubstantiated claims. He thus found no reason for the court to move from its standard set in 2013.

However, just like in 2013, Justice Ojwang did not provide the test of what a satisfactory proof would be to nullify a presidential election. The judge also, in supporting the superiority of numbers over process, said violations of some constitutional and legal requirements in an election should be permitted provided the violations are not "definitive".

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