Ruling on Raila Odinga’s Petition: The Kenya Supreme Court Preserves the Status Quo
The judgement set a bad precedent for Kenya, East Africa and common law in Africa
The Kenya Supreme Court Judgement in Raila Odinga & Others v Uhuru Kenyatta & Others will have enormous impact on the political landscape of African States whose legal system is based on common law/Anglo-Saxon jurisprudence. Recognizing the enormity of the stakes inherent in the petition and the contentious issues on both law and facts, it is surprising that there were no dissenting or separate opinions from the honourable judges of the Supreme Court, a common practice among many of the Supreme Courts in common law countries. Second, the Supreme Court’s apparent uncritical reliance on judicial notice to dispose of the central issue in the petition, namely, the matter of electronic voting and the failure of technology in the electoral process, in my view, is an error of law.
Significantly, there are a number of issues that the Supreme Court casually and uncritically examined in its judgement. Some of these issues are: First, the Supreme Court’s voluntary limitation of its jurisdiction, its decision to resort to narrow legalism, and adopting technicalities of the rules of evidence over substantive justice notwithstanding the express constitutional provision of Article 159(2) (d) of the Constitution. Further, whatever conflict that may exist between Article 159(2) (d) and Article 140 of the Kenya Constitution, the Supreme Court failed to articulate its reasons why it concluded that the provisions of Article 140 overrides that of Article 159(2)(d) to the extent that the Supreme Court preferred to provide procedural rather than substantive justice to the Petitioners.
Second, the Supreme Court exhibited a muddled reasoning in the determination of the standard of proof in election petitions. At some paragraphs of the judgement, the Court pointed out that the standard of proof are above the balance of probability and below that of beyond reasonable doubt. However, in the presidential elections, the Court opined that proof is beyond reasonable doubt. No articulate reasons were provided for these conflicting conclusions. Third, the Supreme Court’s adoption and reckless use of the principle of judicial notice without sufficient analysis and distinction is a grave error of law.
A court of final resort is expected to provide clarity on contentious legal issues. The Supreme Court failed to articulate its reasons why those set of facts referred to by the Attorney General, based on discredited Nigerian cases, qualified as judicial notice. Fourth, the Court’s reliance on an equally discredited case of Bush v Gore as a legal authority for the adoption of the principle of judicial restraint is unfortunate. By adopting the Bush v Gore precedent, the Supreme Court opted to preserve not only the status quo, but to import bad law in the jurisprudence of Kenya and ultimately East Africa and other common law countries.
Finally, the court’s use of discredited jurisprudence, particularly the case law from Nigeria and Uganda, the two countries where election rigging is the norm and the rigged result is regularly confirmed by compliant judiciary, is to underscore the point that no petitioner, challenging a presidential result on the basis of irregularity or incompetence of an electoral body, will ever succeed in overturning the decision of a bias electoral commission. Due to questions of space, unfortunately I will not address all the above errors of fact and law in the judgement but limit my comment to the pivotal issue in the case, namely: The Supreme Court’s decision to rely on the principle of judicial notice and therefore exonerate the IEBC of its incompetence and failure to conduct a free, fair and transparent presidential election.
Judicial Notice: The Supreme Court relied on two judicial notices which resulted in the rejection of the Petitioner’s submission relating to electronic voting and the submission of vote results. The first judicial notice, at paragraph 133, is that “most polling stations are in rural areas, where the primary-school polling stations are dilapidated, and the supply of electricity, to date is a distant dream. Yet voters still go to such polling stations to exercise their rights to vote, and to discharge their duty.” Having acknowledged the challenges of using electricity in these areas, the court then proceeded to assume that there would be no alternative method of providing electricity whether through generators or use of sufficient batteries. If these were not provided by the IEBC, the Court failed to demand or order the IEBC to provide reasonable explanation why electronic submissions failed. Instead, the judicial notice served to shield IEBC from explaining its many failures.
Second, at paragraph 233, the Court took judicial notice of the fact that, “as with all technologies, so it is with electoral technology: it is rarely perfect, and those employing it must remain open to the coming new and improved technology.” The court therefore appears to have taken the view, based exclusively on judicial notice, that technology used by the IEBC was expected to fail in any event. The Court does not provide factual basis or legal reasoning for reaching this conclusion. Further, the Court does not address the fact that if IEBC knew, or had reason to know, that technology would fail, why did IEBC mislead the voters and candidates that technology, purchased at great expense, would work?
The two judicial notices, when read together, suggest that electronic voting could not, and is expected not, to function well or at all in both rural and urban areas. In rural areas, technology is expected to fail because supply of electricity is erratic. On the other hand, in urban and rural areas, technology is also expected to fail because of the unpredictability of technology which by its very nature requires regular updating. Why did the Supreme Court fail to adopt a case-by-case analysis based on the specific condition of each polling station? Some polling stations, even in rural areas, may well have functional electricity, generators or with better organization by the IEBC, sufficient batteries. Thus, the Court’s assumption is erroneous and not necessarily supported by the facts on the ground.
On the other hand, if the facts were so obvious that technology would fail, the Court ought to have decided which party should bear responsibility for the resultant failure? If the responsibility is that of the IEBC, why should the Presidential Candidates be made to suffer the consequences of acts or omission that they are not responsible for?
The Supreme Court did not, however, address the responsibility of the IEBC for the purpose of determining the rights of the Petitioners, and subsequently whether election was free, fair and transparent. Significantly, the Supreme Court does not make a finding whether the IEBC must take legal responsibility for the failure of technology and electronic voting. Instead, the Court recommends that the Director of Public Prosecutions (DPP) investigates the circumstances surrounding the purchase of the failed technology. Regardless of what the result of the DPP’s investigation is, the findings shall be irrelevant for the purpose of the Presidential Election Petition of 2013. Thus, the judicial notice taken by the court, read together with its finding at paragraph 131 that “the elections of 4th March 2013 were not envisaged to be conducted on a purely electronic basis,” and further that “the voting system envisaged in Kenya appears to be manual (emphasis in original) is not only a circular argument, but the Court appears to suggest that manual voting and counting is superior to electronic voting based on a state of the art technology.
Overall, the Supreme Court’s reliance on the two flawed judicial notices, effectively disposed of all arguments relating to technology and the failure of electronic system against the interests of the Petitioners. Finally, even if the 1st Petitioner’s second affidavit, which was rejected by the Court for procedural reasons and not substantive law, were to be admitted in evidence, the two judicial notices would have rendered the affidavit irrelevant for the purpose of determining whether the Presidential elections of 2013 was free, fair and transparent. The judgement therefore sets a bad precedent for Kenya, East Africa and common law in Africa.
Dr A. Obote Odora
Constitutional and International Criminal Law Consultant