NAIROBI, Kenya, Sep 1 – The Supreme Court on Friday ordered the Independent Electoral and Boundaries Commission to conduct a fresh presidential election within 60 days after finding that the August 8 poll was not conducted in keeping with the principles of the Constitution and election law.
A majority of the six-judges on the bench with the exception of Justices Njoki Ndung’u and Jackton Ojwang found that presidential candidate Raila Odinga and his running mate Kalonzo Musyoka had indeed proved their case that the integrity of the August 8 presidential election was compromised by irregularities and illegalities.
While the bench stated right off that it would not be able to deliver a full judgement given the tight time constraints imposed on them by the constitution, Chief Justice David Maraga did give an indication for their reasoning by stating that, “An election is not an event… we took into consideration the entire exercise.”
The Independent Electoral and Boundaries Commission and President Uhuru Kenyatta had argued that while there were errors, there were minute and to be expected and said any failures of the electronic results transmission system were not enough to invalidate the result especially given the clean bill of health given to the ballot casting and counting exercise by a raft of observers.
It was these same reasons that Justices Ndung’u and Ojwang gave for their dissenting opinions.
“Hardly any conclusive evidence has been adduced to justify nullification. Much of the evidence on which the majority depends is largely unascertained,” Justice Ojwang stated. “There is not an iota of merit in this petition that would warrant invalidating the will of the Kenyan people… as all observers publicly acknowledged.”
“For my part I would dismiss the petition,” he concluded.
This was after he and Justice Ndung’u found as Attorney General Githu Muigai had sought to imprint on the bench, that the election was manual “with electronic interventions.”
The petitioners had contended that the IEBC’s electronic result transmission system had been breached with the intruder ‘rigging’ it with a mathematical formula intended to give President Kenyatta a constant 54 per cent lead.
They had therefore sought and succeeded in obtaining orders to access to the servers and to scrutinise the originals of the presidential election result forms 34A, B and C.
A report filed by the court’s officers following the audit showed that not much headway was made with the server audit but did reveal that the Form 34Bs – which are the tally of the polling station results at the constituency level – had a number of irregularities with several lacking returning officer signatures and agent signatures, other did not present the security features such as watermarks and serial numbers.
All of which raised red flags with Chief Justice Maraga and Justice Lenaola who on the last day of hearing on Tuesday, queried them in open court.
IEBC’s explanation was that it was not required in law to ensure that the Forms 34B were possessed of security features, “it was out of an abundance of caution,” IEBC’s legal representative Paul Muite said, that they had sought to include them.
President Kenyatta’s legal actors on the other hand submitted that the identified errors in no way significantly altered the final presidential election result with his advocate Fred Ngatia submitting that Odinga and Musyoka had taken issue with the features a statutory form should possess and not the numbers therein.
In support of his point he told the court that the petitioners’ agents signed off on 94 per cent of the results as captured on over 80 per cent of the 40,883 polling station Form 34As where they were represented.
After the Supreme Court finished giving its verdict on the integrity of the August 8 presidential election result, one of President Kenyatta’s legal counsels, Ahmednasir Abdullahi, demanded to see in the court’s detailed judgement, how the irregularities it referenced, obliterated President Kenyatta’s 1.4 million vote lead.
Muite for the IEBC reacted this way: “Right or wrong, the Supreme Court has spoken and this presents an opportunity for the Kenyan people to restate their will.”
James Orengo for the petitioners in turn challenged President Kenyatta to accept the court’s decision as he had on multiple occasions called for their side of the political divide, following their 2013 loss, to do.
The Law Society of Kenya stayed true to the role of impartial advisor to the end of the proceedings with their legal representative Stephen Mwenesi, “praying and hoping,” the IEBC would deliver an unimpeachable presidential election, the second time round.
The bench promised to make available their full judgement within the 21 day deadline set in its own rules but did make clear that their invalidation of President Kenyatta’s election was not on account of any malfeasance on his part.