There was, simply, no evidence – Supreme Court

April 16, 2013 10:38 am


In a detailed judgment issued on Monday, the Court was unanimous that the evidence did not affect the outcome of the election/FILE
In a detailed judgment issued on Monday, the Court was unanimous that the evidence did not affect the outcome of the election/FILE
NAIROBI, Kenya, Apr 16 – The Supreme Court has revealed that it rejected the presidential petitions by former Prime Minister Raila Odinga and civil society activists on the account of lack of sufficient evidence.

In a detailed judgment issued on Monday, the Court was unanimous that the evidence did not affect the outcome of the election.

According to the six-judge Bench, the petitioners failed to show that President Uhuru Kenyatta had not attained the constitutional threshold of being declared winner.

The judgment read that: “In summary, the evidence, in our opinion, does not disclose any profound irregularity in the management of the electoral process, nor does it gravely impeach the mode of participation in the electoral process by any of the candidates who offered himself or herself before the voting public.”

“It is not evident, on the facts of this case, that the candidate declared as the President-elect had not obtained the basic vote-threshold justifying his being declared as such,” further read the judgment.

In the March 4 election the Independent Electoral and Boundaries Commission (IEBC) declared Kenyatta as President-elect, with 6,173,433 votes while Odinga, who was in second position got 5,340,546 votes.

According to the judges there was no possibility that the conduct of the election would have been perfect but that the demerits of the process did not distort the will of the people.

“We came to the conclusion that, by no means can the conduct of this election be said to have been perfect, even though, quite clearly, the election had been of the greatest interest to the Kenyan people, and they had voluntarily come out into the polling stations, for the purpose of electing the occupant of the Presidential office.”

That court affirmed that IEBC was correct to revert to the manual systems of tallying and voter identification after the Electronic Voter Identification Devices (EVID) and the Result Transmission System (RTS) failed as there was no other rational retreat.

According to the Court, the Commission should however take urgent steps in backing up voter information captured during the registration process.

“As regards the integrity of the election itself, what lawful course could IEBC have taken after the transmission technology failed? There was no option, in our opinion, but to revert to the manual electoral system, as was done.”

“We note from the evidence that the said manual system, though it did serve as a vital fall-back position, has itself a major weakness which IEBC has a public duty to set right. The ultimate safeguard for the voter registration process, namely “the Green Book”, has data that is not backed-up, just in case of a fire, or other like calamity. We signal this as an urgent item of the agenda of the IEBC, and recommend appropriate redressive action,” the verdict read.

On the questions of tallying, the court was unanimous that such was the mandate of the IEBC and that it was up to the commission to decide how best to do it while incorporating stakeholders in the process.

The judges reiterated that although IEBC was bound by values of good governance, integrity, transparency and accountability such could only be optimally realised in conditions of good order, peace and security.

“We must come to the conclusion that tallying was indeed conducted in accordance with the law, and the relocation of political party agents did not undermine the credibility of the tallying, nor provide a basis for annulling the outcome of the Presidential election.

On the Voter Register the Court said that Odinga, Civil Society activists Gladwell Otieno and Zahid Rajan failed to show that the voters’ register as compiled and used, was in any way in breach of the law, or compromised the voters’ electoral rights.

The Court has held that the register is not envisaged by law to be a single document, but a combination of several parts prepared to cater for divers groups of electors.


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