Supreme Court judge Njoki Ndung’u Wednesday tore into key parts of the evidence which informed the ruling that annulled the August 8 presidential election.
Justice Ndung’u said the disputed Forms 34A used to declare the election outcome were proper in form and content.
The judge, who was the last to deliver her ruling, said the court should have real grounds for concluding that the election results were not credible.
Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu and justices Smokin Wanjala and Isaac Lenaola had earlier upheld arguments by the National Super Alliance in the petition.
They ruled that the Independent Electoral and Boundaries Commission failed to verify the numbers before declaring the election winner and that Nasa had shown that the declaration of the results was made before all the 40,883 Forms 34A had been received.
The court also said a random scrutiny of Forms 34A showed there were discrepancies. Justice Ndung’u, however, said she conducted an analysis of the 291 Forms 34B — 290 constituencies and one from the diaspora — and the disputed Forms 34A and noted they were okay.
She faulted her colleagues for not using the certified forms filed in court by the commission to verify the claims made by Nasa presidential flagbearer Raila Odinga.
The judge added that her colleagues invalidated proper documents on the basis of an exercise whose findings were not in conformity with the forms presented by IEBC in court.
Where there were omissions, they could not affect the result of the election, and the court had the powers to inspect other materials to verify the integrity of the poll, she said.
Justice Ndung’u added that there was a verifiable paper trail which the court could use. She cited various institutions which could verify the claims, including the commission itself, observers, the media, the public and any court hearing petitions.
“The lack of security features or signatures from agents as cited by Nasa, was not by itself a reason to invalidate the election,” she said.
The judge added that the majority opinion did not have a reason to overturn the election of Mr Uhuru Kenyatta as president.
Justice Ndung’u argued that elections were “rights-centric” and not “form-centric”, insisting that where the court was in doubt, inspection of the ballot materials was essential.
The result of the election, she said, was never an issue and was not shown to have been affected by the alleged irregularities or illegalities as cited by other judges, she insisted.
According to Justice Ndung’u, there was no basis to reverse the will of voters and in the absence of evidence, “a court must not interfere with people’s choice”. She also said the assumption that more votes cast in favour of the President compared to governors and MPs meant IEBC interfered with the result of the poll was wrong.
“The law allows a voter to cast one ballot so long as the unused ballots are kept aside in tamper proof envelopes,” Justice Ndung’u said, adding that nobody was under any obligation to vote in the other five elections.
She also faulted her colleagues “for deliberately overturning a previous decision of the court on section 83 of the Elections Act to favour a finding of nullity”.
“Elections belong to everybody and it is everyone’s responsibility to protect them,” the judge said.
On the electronic transmission of results, Justice Ndung’u disagreed with the other judges who said IEBC disobeyed an order to provide access to ICT logs and servers.
The judges said the commission’s failure to open the servers for scrutiny was proof that it was hiding much.
But Justice Ndung’u said the orders were clear and distinct that IEBC was to provide a read-only copy of the logs in the servers.
“The court did not give orders for the petitioner to access the first respondent’s servers but only access the read-only copy information since the commission’s integrity had to be protected,” she said.
In polling stations not covered by 3G and 4G mobile phone networks, manual transmission of results was the proper alternative, she said.
“A legislative reconsideration of the electoral law to clarify that technology is secondary to the manual transmission system should be made,” the judge said.
“Our electoral process is not purely electronic. It comprises both manual and electronic systems. It is largely manual.”
Judge argues the electoral commission conducted the elections in a free, fair and transparent manner.