NAIROBI, Kenya, Sep 22 – One of the biggest controversies that marred the 2017 presidential election petition which led to an annulment of the results on September 1 by the Supreme Court is the mystery of the numbers.
The Top Jubilee Party leadership, in particular, insists that if the courts didn’t find anything wrong with the numbers, then the elections should not have been nullified because of procedural errors.
In fact, no one captured the gist of President Uhuru Kenyatta’s response to Raila Odinga’s petition like senior counsel Fred Ngatia who said that “what was conveyed was more important than how it was conveyed.”
But Charles Kanjama, an advocate of the High Court disagrees.
“Transmission can poison the whole process,” he said. “Both what was conveyed and how it was conveyed is important. The only way you can determine the authenticity of what was conveyed is looking at how it was conveyed.”
“Both what was conveyed and how it was conveyed is important. The only way you can determine the authenticity of what was conveyed is looking at how it was conveyed.”
This argument formed the premise of the National Super Alliance’s (NASA) petition and influenced the majority decision to annul the election.
Through their advocates, they argued that “the election was so badly conducted and marred with irregularities that it does not matter who won or was declared a winner,” further adding that “the irregularities committed significantly affected the results to the extent that Independent Electoral and Boundaries Commission (IEBC) cannot accurately and verifiably determine what results any of the candidates got, so the petitioners contended.”
However, after analyzing the ruling, Kanjama in his opinion, points out that he gets the feeling that maybe majority judges did not fully understand the process of transmission of results.
“For me personally, I think the majority misinterpreted the Maina Kiai case and its implications,” he said.
“The role of the National Returning Officer, at least in the Maina Kiai case was simply to total up those results that were declared at the constituency not to start verifying or altering them. The five-judge bench of the appeals court categorically stated that “he has no business purporting to verify.’”
An assertion that Paul Mwangi who was part of the NASA counsel team quickly dismissed.
“The Maina Kiai case did not remove verification. You don’t go to announce results because it has been brought to you. You have to ensure that it is from the right constituency, signed by the right person, and it is in your prescribed form otherwise you are going to announce results using forgeries or documents that do not belong to IEBC,” he clarified.
It is this transmission quagmire that led majority judges to title part of their judgment “the mystery of Forms 34A and the conundrum of electronic transmission.”
The judges faulted Wafula Chebukati, the National Returning Officer for declaring President Uhuru Kenyatta the winner of August 8 poll without receiving all the Forms 34As.
“As a matter of fact, nobody disputes the fact that on 8th August 2017, Kenyans turned out in large numbers, endured long hours on queues and peacefully cast their votes,” read part of the majority’s ruling.
“However, the system thereafter went opaquely awry and whether or not the 3rd respondent received a large number of votes becomes irrelevant because read together, Sections 39(1C) and 83 of the Elections Act say otherwise,” they added.
But Kanjama faults this ruling, arguing that goal posts were shifted on the standard of proof and burden of proof legal concepts.
“They have shifted the burden of proof to IEBC before the standard of proof was met by the petitioner. They have asserted that legal principle hasn’t changed but they applied it at the end,” Kanjama pointed out adding that “it was the responsibility of the petitioner to present a strong case to prove what they had alleged.”
Mwangi’s rebuttal came quick and furious, “it is only in a criminal court where the burden of proof never shifts. If sufficient evidence was brought before the court to cast doubt on what you have done, then you have a duty to explain.”
“For instance on the face of it the evidence before the court shows that evidence might be a forgery, then it is upon you to prove that they are not.”
A judicial coup
Mwangi had a bone to pick with the narrative that the judgment by the majority amounted to a judicial coup.
“A coup means you have overthrown something lawful. The court is saying that what you have isn’t lawful. You have ignored the direct consequences of the law to come up with the end of the product, how is it a coup?” he asked.
A number of Jubilee Party allied MPs have asked why NASA did not petition the courts for a recount of the presidential elections.
“First there is no time and the court observed that it is very unfortunate that over the last four years, we have not addressed the issue of the time frames. If you look at the legal provision, the status conference of a presidential petition is held on the 8th day. You only have six days remaining to hear the submissions and make a ruling,” he said adding that “within that time, it is very hard to do a countrywide vote count of around 40,000 ballot boxes.”
But the fundamental question that Mwangi had for the Jubilee Party is why they did not take any intuitive to apply for a vote recount at the Supreme Court like NASA applied for the audit of the servers.
“The petitioner’s case was that it doesn’t matter what was in that box. The elections were done so bad that it was a fraud. But why didn’t they apply for a recount?” he asked further saying that they were guided by Section 83 which asked this question, ‘Have you complied with the law?’ If you have substantially not complied with the law, then you can’t even talk about the results,” he concluded.