By Kenya Confidential Political Editor, Nairobi – September 23, 2017
Raila failed to prove any evidence that they were irregularities and illegalities and that such irregularities affected the Presidential results
A summary of the full judgments of the Presidential Election nullification by Supreme Court on September 1 indicates the decision by the majority four judges was not based on any tangible evidence but on electronic transmission of results, which none of the judges understand. Indeed, the majority judges failed to find any “finger prints” of anyone culpable of any irregularities or illegalities touted as reasons for the nullification.
DISSENTING OPINION OF HONOURABLE JUSTICE OJWANG, REVEALING HOW SUPREME COURT MAJORITY MISLED THEMSELVES
ISSUES FOR DETERMINATION
Was the election conducted in accordance with the Constitution and the election laws and regulations.
- Any determination to that effect must be supported by evidence;
- There was no evidence from the Petitioners from their documents of any contravention to the Constitution and the law;
- ▪The evidence on record on compliance with the law and the Constitution came from the Respondents and it was credible;
- He found that the Petitioners did not establish non-compliance with the law and the Constitution;
- He held that the votes cast had been announced at the polling stations, where they were tabulated, and results announced.
- The 1st respondent provided the Forms 34A from all polling stations; Forms 34B from constituency tallying centres; and Forms 34C at the National Tallying Centre – which was signed by all the Presidential election agents, save for the petitioners’ agent. Whether there were irregularities and illegalities and if there were, whether they impacted on the election results.
- The Petitioner failed to prove any evidence that they were irregularities and illegalities and that such irregularities affected the results.
- His holding was that irregularities in the conduct of an election should not lead to an annulment where the election substantially complied with the applicable law and the results of the election were unaffected. Whether rejected results should be considered in ascertaining the attaining of the constitutional threshold candidate ▪ Said they should not be considered. Silent on Section 83 of the Election Act
- On burden of proof, he held that the Petitioners case was founded on weak grounds as compared to the Respondents. The Petitioner’s Legal burden of proof and the shifting evidential burdens falling upon them in his view the Petitioner’s did not discharge and in the end no valid case was made against the Respondents.
DISSENTING OPINION OF HONOURABLE LADY JUSTICE NJOKI NDUNGU EXPOSING COMPLICITY IN DEFRAUDING KENYA CITIZENS
Issues for determination 1. Was the election conducted in accordance with the Constitution and the election laws and regulations.
▪ Substantial compliance with the provisions of the Constitution; 2. Whether there were irregularities and illegalities and if there were,
whether they impacted on the election results.
- She held that was not proved that the voter’s will during the conduct of election was so affected by any irregularities cited so as to place this court or country in doubt as to what the election was;
- Unlike other election, challenge for presidential election, you cant avoid tackling numbers because of the constitutional threshold;
- She noted that the Supreme Court of Kenya has over the years determined the question as to the nature and extent of electoral irregularities, and their legal effect arises a number of times. The Court further noted that the crisp issue is: how do regularities and related malfunctions affect the integrity of an election. She stated that an election should be conducted substantially in accordance with the principles of the Constitution, as set out in Article 81.
- The alleged irregularities or illegalities ought to have a nexus with the declared results.
- Regulation 68 provides that ballot paper does not require that there is a need for security features. It only provides that it shall have the name, photo of candidate, party symbol etc. Does not apply to forms;
- Security features were not obligatory on Forms 34As unlike the ballot papers;
- An examination of those forms from documents supplied to the Supreme Court pursuant to the Supreme Court Act, after the filing of the Petition, revealed that the forms were signed by Presiding Officers and agents of candidates;
- The majority did not verify the results from the forms supplied to the court by IEBC. Accordingly, the majority relied on false allegations.
- Numbers are crucial in considering whether to invalidate presidential election in view of the constitutional requirement that the successful candidate should have more than half of the votes casts and 25% in majority of the counties.
- The sovereign will of the people is reflected in numbers.
- With respect to the Registrar’s report after scrutiny of the Form 34A and Form 34 B, it was noted that five (5) Constituencies were in serious contention for want of Form. The report indicated:
- That Forms 34B in Kisauni, Nyali, Likoni, Mandera South and Isiolo South Constituencies were not signed by the Returning Officer.
- (ii) That Nyali Constituency Form 34B lacked a water mark.
- (iii) That Form 34B in Isiolo South was not signed by the party agents.
- Held that all the Forms 34A and 34B (290 constituencies, 1 diaspora), she was satisfied that all the Forms met the required threshold in Form and content.
- Stated that where the respondents admitted the allegations such as those of administrative errors credible evidence was supplied to prove that the said errors did not materially affect the results and they were not in favour of any particular candidate.
- On the lack of a serial number on the statutory Form 34B used to declare the results of Nyali Constituency, Mombasa County, she stated as follows:
- The Form has 4 pages that bears serial numbers – PR001004-5, PR001004-6, PR001004-7, PR001004-8
2. It is stamped; The name and Identity number of the Constituency Returning Officer is indicated;
3. It is signed by the Returning Officer; It is also signed by Agents for Uhuru Kenyatta and Raila Odinga; The Statutory Form was printed in landscape as opposed to portrait format as most of the forms are. The serial number therefore was at the bottom left corner of the paper
▪ The electoral system in Kenya today is designed to be simple and verifiable. Whether rejected results should be considered in ascertaining the attaining of the constitutional threshold for candidates.
▪ Said they should not be considered. Section 83 of the Election Act
▪ She espouses a right centric approach as opposed to a form centric approach;
▪ Majority departed from previous interpretations of Section 83 of the Elections Act without reasons;
▪ Any irregularities must impact on the results: the irregularities were not shown to impact on the results.
MAJORITY DECISION THAT ROBBED KENYANS OF THEIR CONSTITUTIONAL ELECTION RIGHTS
Issues for determination
- Was the election conducted in accordance with the Constitution and the election laws and regulations.
▪ Elections not conducted in accordance with the Constitution and the Election Act in that the elections were not transparent, accurate, accountable, simple, verifiable and the results not verified and transmitted electronically;
- Whether there were irregularities and illegalities and if there were, whether they impacted on the election results.
- They were illegalities and irregularities and the same impacted the integrity of the elections;
- Elections is not a event, it is process and if any aspect of the process is not complied with, the election will be declared null and void irrespective of the outcome; If numbers are a product of a poor process then the numbers would be imputed;
- The irregularities were of such a substantial nature that the court in good conscience could not declare that the will of the people was conformed to;
- Allegation of bribery and undue influences and other related election offences against the 3rd Respondent was not proved, no evidence was tendered to show culpability;
- On the issue of irregularities, the burden of proof shifted to the Respondent, a position not known in law;
- IEBC announced results without verifying the information contained in Forms 34A;
- Poll results were transmitted in accordance with Section 39 and 44A of the Elections Act;
- Forms 34A had no security features, raises doubts as to their authenticity;
- IEBC did not have a simple and verifiable system in line with Article 81 of the Constitution;
- IEBC did not comply with the court order to open up their systems for verification, hence impossible to ascertain how they verified the result prior to announcing result;
- IEBC issued uncertified documents of penetration tests; did not provide firewall information. Only granted read only access making it impossible for the ICT experts to confirm the hacking claim (ICT report);
- 1st Respondent’s explanation that the transmission failed could not be accepted by the court because it had announced at a press conference that its technology was ready and would not fail during the election;
- Failure to access 3G/4G was not a failure of technology. IEBCs ICT officials should have known which areas did not have coverage;
- The election could not have been verifiable since IEBC could not open the servers to ascertain documentation scanned and present;
- IEBC failed to interpret the Court of Appeal case of Maina Kiai case and the impact on its holding of the election.
- The Court of Appeal decision did not prevent IEBC from transmitting the original forms to the Constituency Tallying Center (CTC) and National Tallying Center (NTC) for verification purposes;
- The COA decision did not stop IEBC from verifying the results at all levels (polling station, CTC, NTC). Maina Kiai case only barred IEBC from altering any results from the polling station and CTC under the guise of verifying results;
- His Excellency President Uhuru not guilty of election offence section 14(2). No evidence provided to allude to Uhuru’s culpability and matter is before the high court. Allegation not proved ;
- Threatening of chiefs (undue influence). Influence must be manifest. One must showcase impact of the pressure. Allegation not proved;
- Corruptly influenced voters by paying reparations to victims of 2007 Post election violence. Cabinet Secretary Mucheru/Wamalwa/Kiunjuri open campaign for HE. Declaration of unconstitutionality of Section 23 of Leadership and Integrity Act not granted. Matter ought to be prosecuted in the High Court.
- In respect of forms, there was no reasonable explanation why some forms had security features and others did not. All were printed by the same printer. Comparing Kassait’s affidavit on form requirements, there is contradiction with Paul Muite’s statement that the requirement was from abundance of caution.
- On the Scrutiny report – some forms were carbon copies, some unstamped, some unsigned, some without explanations from failure to sign by agents – no agents or returning officers were summoned to clarify or explain the allegations.
Whether rejected results should be considered in ascertaining the attaining of the constitutional threshold candidates
▪ Said they should not be considered. On Section 83 of the Election Act
- A correct application of Section 83 of the Elections Act is one that ensures that the election is a true reflection of the people, one that meets the constitutional standard and one that secures both qualitative and quantitative standard in accordance with the Constitution.
- ▪ The ‘or’ in Section 83 of the Elections Act is paramount. If the wording in Section 83 was ‘and’ the finding may have been different; On burden of proof
▪ Petitioners discharged their burden of proof. Burden then shifted to Respondents. Having shifted the burden, the Respondents did not defend it well.
What ridiculous and inept judgment?