Electoral commissioners and staff were let off the hook for the numerous irregularities which caused the nullification of the August 8 presidential election.
The Supreme Court said it had found “systemic institutional problems” but no evidence of criminal intent or wrongdoing by the commissioners and secretariat staff.
To some extent that paves the way for the commission to oversee the fresh election which must be held in 35 days, but comes against a backdrop of the serious indictment of the commission’s work in managing the election.
The court explained that it because, among others, the returning officer, Mr Wafula Chebukati, did not verify the results before declaring a winner.
The court, chaired by Mr Justice David Maraga, detailed how the Independent Electoral and Boundaries Commission (IEBC), violated the constitution and laws in the management of the August 8 presidential election.
Judges said Mr Chebukati, who is the IEBC chairman, did not have all forms 34A at the time of the declaration. According to the court, Mr Chebukati ought to have verified that the forms 34B, which were filled by returning officers, faithfully reflected what was contained in forms 34A, filled by presiding officers at the polling stations.
Also, the court indicted the commission for irregularities by not ensuring that the results forms were standardised, signed, stamped and had security features.
But in a dramatic development, Lady Justice Njoki Ndungu, in a lengthy dissenting judgment, systematically disproved the basis of her colleague’s case, saying that she had personally examined all the forms said not to have been signed and found them signed, those said not to have serial numbers actually had them and that all those complained of were properly compliant.
This raises serious questions about the management of evidence and verification of facts by judges and court staff.
The spectre of further court battles was raised when Mr Fred Ngatia, one of the lawyers representing the President, opposed a request to have the presidential ballot boxes opened and re-used. He also requested copies of the judgement overnight, referring obliquely to “other processes.”
The majority ruling, which was signed by Justice Maraga, Deputy Chief Justice Philomena Mwilu, Justice Smokin Wanjala, Justice Mohamed Ebrahim, Justice Lenaola said irregularities were serious enough to make it impossible to uphold the elections results. Justice Wanjala (foreign trip) and Justice Ibrahim (indisposed), were however, absent.
“We find that the 2017 election was not conducted in accordance with the election laws and the constitution. It was not, inter alia transparent, fair, credible and verifiable. On that ground alone, we have no choice but to nullify it,” ruled Lady Justice Mwilu.
Reading an important part of the majority ruling, Lady Justice Mwilu argued that an election should be seen as a process which starts from registration of voters all the way to the announcing of verified results. Any failure to comply with any step of the process, she said, affects the validity of the election.
“Elections aren’t just about the results numbers, but the process. In numbers there must be a computational path to arrive at the results. Elections begin with registration of voters, nomination, voting, counting, tallying, verifying and announcing results. Election is not an event but a process. Any non-compliance with any part affects the validity,” she said.
Mr Justice Jackton Ojwang, like Justice Ndung’u, dissented, arguing that any irregularities were not adequate to warrant overturning the election verdict.
The two judges criticised their colleagues for basing their judgment on the process of the election, rather than its outcome, saying that this is a departure from the tradition set by the court and risks damaging the legal system.
Mr Chebukati on August 11 declared President Kenyatta winner with 8.2 million votes, representing 54.2 per cent of valid votes, beating Mr Odinga who had 6.8 million votes accounting for 44 per cent of the votes.
Yesterday, Justice Maraga warned that failure to uphold the Constitution could easily lead to tyranny and urged politicians not to fall prey to the temptations of power. “The greatness of nation does not lie in its armies, the largeness of an economy but fidelity to the Constitution, adherence to the rule of law and fear of God. Where the law ends, tyranny begins. Even the best rulers have fallen prey to the naked desires of power,” he said.
FAULTY FORM 34A
In the majority ruling, the court found that Mr Chebukati declared President Kenyatta the winner using a faulty Form 34 C drawn from the contents of forms 34B, some of dubious authenticity. “Form 34 C which was used to announce presidential results did not have security features,” the CJ ruled.
Delving into what the court termed as the puzzle of Forms 34A, Lady Justice Mwilu questioned the decision of the IEBC to ignore the originating document and opt to use forms 34B.
She questioned why the commission failed to avail all forms 34A to the petitioner three days after declaration of the results and whether all forms 34A were simultaneously transmitted to the Constituency Tallying Centre and National Tallying Centre. “If so, why were the forms not available? If not, why?” she posed. Lady Justice Mwilu recalled that IEBC lawyer Paul Nyamodi confirmed that Form 34C was drawn entirely from forms 34B “ in exclusion of forms 34A”.
Referring to the Court of Appeal ruling in the case involving former United Nations Special rapporteur Maina Kiai, Khelef Khalifa and Tirop Kitur, which declared that the presidential election results as declared by the constituency returning officers should be considered as final, she said it did not exclude forms 34A in determining the final presidential vote.
The three had sought a declaration that the presidential election results as declared by the constituency returning officers should be considered as final.
“We (judges) were at pains to understand how the Court of Appeal ruling justified this. What remains uncontroverted is that on 15th August, three days after the declaration of the results, IEBC CEO Ezra Chiloba was saying it was not in a position to provide 34A forms as requested by Nasa, an implicit acceptance that IEBC declared presidential results based on 34B forms,” she said.
Justice Maraga said they found that the IEBC used results forms which had varying security features.
So, he said, were carbon copies which had or lacked security features in spite of being printed by one company—Al Ghurair Printing and Publishing based in Dubai. This, he said, affected Forms 34 A, B and C. The court said discrepancies in results forms affected 70 constituencies which accounted for five million votes.
“Were they forgeries? Who introduced them into the system? If they were genuine, why were they different? This posed a dilemma over election results for us,” he said.
The court, still, ruled that the Kenya Integrated Election Management (KIEMS) — which are used to identify voters and transmit results — was modified without reference to all the candidates.
“The election law requires the commission to send presidential results from the polling station to the constituency tallying centre and national tallying centre simultaneously to guard against tinkering,” the judges.
The court also took issue with IEBC’s announcement two days to the polling day that after their mapping they had realized that out of the 40,883 polling stations around the country, 11,155 did not have 3G or 4G GSM network coverage for transmission of results.
The court poked holes into this claim, saying the commission didn’t say when they did this mapping and added it was common knowledge most of the areas cited (some in Bomet, Kisii, Kisumu, Bungoma, Murang’a) had the requisite network.
In any event, the judges said, IEBC ICT director James Muhati had assured the country that appropriate measures had been taken to enhance transmission rate in those polling stations which accounted for 3.5 million voters.
One of these measures was instructing presiding officers to move to areas where there was 4G or 3G network for purposes of sending results.
Justice Isaac Lenaola said the commission conducted elections so badly that it failed to comply with the constitution and the elections laws.
He said when Mr Odinga moved to court, IEBC failed to avail election materials within 48 hours as required under the law, compelling the court to order the commission to open its servers to determine its footprints and scrutiny of the elections materials.
By Julius Sigei, Bernard Namunane, Sam Kiplagat, Ibrahim Oruko and Richard Munguti
Scrutiny served to add weight to claims that there was likely infiltration of the IEBC computer system and manipulation of results data.