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

Willy Mutunga: The Supreme Court he heads did not address the responsibility of the IEBC

Willy Mutunga: The Supreme Court he heads did not address the responsibility of the IEBC

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
Stockholm, Sweden

 

12 comments

  • Kikuta Kisemo .

    Kenya Suprem Court is just a new name its really a Kangaroo-cum Nyani Court meant to preserve the Status quo!The people of Kenya has the right to Overthrow Uhuruto illegal government conspired by Gema-Kikuyu Ruling-class to continue with Kikuyu -Kamatusa hegemony to control their ill-gotten wealth .

  • Hi Alex, Your piece summarizes the Supreme Court ruling very well, especially with
    reference to the biased cases of Nigeria and Uganda. Within the legal fraternity, I guess it will be a template for how wrong things are in many African judicial systems. It was a political ruling and as you aptly asserted, meant to retain the status quo.

    There were rumors CJ Mutunga was threatened by the National Security bosses that if he favored Raila, the army would take over the country’s leadership.

    Here’s a video link with a recent TV discussion by the lead council for AFRICOG, one of the petitioners:

  • tairani ya manamba

    ‘Tyranny of numbers’ remained true in all regions

    Updated Sunday, April 21 2013 at 19:26 GMT+3

    By Dominic Odipo

    Is the Coalition for Reforms and Democracy (CORD)about to lose the next presidential elections even before the new government has formally gotten off the blocks? The way things are going, we fear it is about to make one or two very big mistakes — mistakes so fundamental that their impact could not possibly be reversed before the next presidential elections.

    But, first, a word about voter turnout, the places and the percentages. Ac cording to the final figures, which one can easily obtain from the Independent Electoral and Boundaries Commission (IEBC) free of charge, the highest turnout in the presidential elections held on March 4, 2013, was registered in Lari Constituency of Kiambu County. In that Constituency, 96% of all the voters who had been registered turned out and actually voted.

    And since Kiambu is the home county of Uhuru Kenyatta who was the Jubilee Alliance presidential candidate, it is not hard to figure out where most of these votes ended up.

    In Gatundu South, Uhuru’s constituency, the turnout was only one percentage point lower, at 95%. Of the six constituencies in Nyeri County, another Jubilee stronghold, none registered a turnout rate of less than 92%, with Tetu leading at 95%.

    Now consider Kakamega County, the second largest in terms of population and which was leaning towards the Cord and Amani alliances. Of the 12 constituencies in that county, none registered a turnout rate of more than 87%, which was achieved in the former Mumias constituency. Only 81% of the registered voters in Shinyalu constituency actually turned out to vote.

    Of the six Luhya constituencies in neighbouring Bungoma County, another Cord and Amani stronghold, the highest turnout rate registered was only 88% in Bumula.

    Only 82% of the registered voters of Kimilili constituency actually turned out to vote for their preferred presidential candidate.

    Now take the Ukambani section of the old Eastern Province which was heavily ‘Corded” due to the influence of former Vice President Kalonzo Musyoka who was Raila Odinga’s running mate in the Cord Alliance.

    In Mavoko constituency of Machakos County, only 75% of the registered voters actually turned out to vote. The highest turnout in that county, at only 88%, was registered in Kangundo constituency. In the neighbouring Makueni County, another Cord stronghold, only 82% of the registered voters turned out to vote in Kibwezi East and the highest turnout rate, at only 87%, was registered in Kaiti constituency.

    In Kilifi County, another Cord stronghold, only 58% of the registered voters turned out to vote in Kilifi North constituency. Of the seven constituencies in that county, only one, Rabai, registered a turnout rate beyond 69%. In neighbouring Mombasa County, which was also heavily Corded, the story was more or less the same.

    In the Changamwe, Jomvu and Likoni constituencies of that county, only 64% of the registered voters turned out to vote for their preferred presidential candidate. Of the six constituencies in Mombasa County, none registered a turnout rate of more than 71%.

    Siaya, that is Raila Odinga’s home county, did not let him down but, even there, the turnout rates raised quite a few eyebrows. In Gem constituency, the home of former ODM Chief Whip Jakoyo Midiwo, only 91% of the registered voters actually turned out to vote.

    Clear message

    And in Ugenya, James Orengo’s constituency, only 89% of the registered voters turned out to vote for their preferred presidential candidate. In Kisumu County, a heavily Corded area, only 86% of the registered voters in Kisumu Central constituency turned out to vote, while in Kisumu East, only 88% of the registered voters actually voted.

    We can go on quoting these turnout percentages but one suspects that you have already got the drift of where all this is going. Basically, thousands upon thousands of people who had registered to vote in the Cord strongholds did not actually turn out to vote for their preferred presidential candidate on March 4.

    Conversely, thousands upon thousands of people in the Jubilee strongholds, who could also have stayed away from the polling stations on election day, actually turned out to vote for their candidate.

    And so, when the final tally was calculated, Uhuru had garnered a total of 6,172,482 votes nationally against Raila’s 5,339,322, registering a margin of 833,160 votes.

    Whatever your views about the Supreme Court judgment which validated Uhuru’s victory might be, these figures appear to convey a very clear message that is this: Not only did the Jubilee Alliance win those elections, it was going to win again if the Supreme Court had called for a re-run of the presidential polls.

    Why did 96% of registered voters in Lari, Uhuru’s stronghold, turn out to vote while only 89% of the registered voters in Ugenya, Raila’s stronghold, turned out to vote?

    Unless the Cord begins asking itself some of these fundamental questions and then earnestly seeking answers, it does not matter whether Raila and Kalonzo are re-cycled back into Parliament or not. It will lose again at the next presidential elections.

    This Alliance needs to identify the real reasons why so many of its supporters did not turn out to vote for Raila Odinga on election day. Blaming the Supreme Court or the IEBC will not help much in these circumstances. Ultimate victory lies in the future, not in the past.

  • tyranny of numbers plz wake up and start discussing intelligent issues…which hole do you live in??Voter turn out my foot.
    Visit the website by Africog for eveidence…there is even a voter turn out for UHURU at 450% indeed voter turn out.
    Who will teach the poor children of this country virtues and ideals if lying, stealing is the order of the day to the extent its becoming the norm for society….when we have goons like you stupidly happy for no good reason?

  • Currently Kenya is held captive by the devil….else how can any one explain aaaaalll the suffering?the heartless rigging, the fear by the Supreme Court to assert their supremacy?Perhaps everyone should mind their own business and let leave.There is the Supreme God who will come to judge the living and the dead.
    But one word for CJ….am not sure about him anymore one word, Useless! PhDs, on the bench whatever!

  • Why do kenyans expect Corrupt judges of yesteryears has reformed simply becouse of wearing green-night gowns while inside their hearts they are filthy rotten.corrupt and betrayers They are just quacks bathing in legal attires and robes
    with no sound interpretation of the law as it should apply to all Kenyan’s.

    Simply put they are an embarrassment to every legal fraternity ever constituted and should therefore resign in their own shame and leave us alone. They don’t mean a thing
    anymore and nothing is expected from them hereon.

  • Verdict on Kenya’s presidential election petition: Five reasons the judgment fails the legal test

    By Wachira Maina

    Posted Saturday, April 20 2013 at 12:37

    Justice Robert H. Jackson once said of the US Supreme Court: “We are not final because we are infallible, but we are infallible only because we are final.”

    The infallibility that finality brings may, in the long view, be one of the few merits of the Supreme Court’s much awaited judgment on the presidential petitions.

    Sixty per cent of the judgment, by length, is a leisurely rehash of the facts and arguments made by the parties in court. Everything else is given short shrift: Seven paragraphs are spent on reviewing and resolving the issue of the failed technology; another nine paragraphs dispose of the IEBC’s discretion to do manual tallies; 11 paragraphs are dedicated to the voters register and, astonishingly for a court given to brevity, 27 paragraphs are set aside to explain why rejected votes must not count in computing presidential percentages.

    To paraphrase an old cynic’s quip, this judgment is both detailed and important, but the parts that are detailed are not important and those that are important are not detailed.

    This article offers five reasons for this conclusion:

    First, there is the Court’s reliance on extremely backward Nigerian authorities urged on it by the Attorney General, Prof Githu Muigai, acting as amicus curiae. Second, there is its tolerant and uncritical acceptance of the IEBC’s explanations about the ever-fluid totals in multiple voters’ registers and what this means in practice. Third, there is the question of tallying and especially, what the Court’s own tallies show but is not properly reflected in the judgment. Fourth, there is the Court’s use of subsidiary legislation to limit the meaning of “votes cast,” an unambiguous phrase in the Constitution. Finally, there is evidential foreclosure that the Court imposes on itself by taking judicial notice of technology failures instead of treating IEBC as spurious, as urged by petitioners.

    Backward looking, mean-spirited, cramped Nigerian precedent

    Let us start at the beginning. Central to the Court’s judgment is what the petitioners needed to prove and to what standard they should have proved it in order to get a remedy. The Court says that the answer to that question is “well exemplified” in Nigerian case law.

    Apropos of Nigerian inspiration, it concludes that a petitioner must prove that the law was not complied with and also that the failure to comply affected the validity of the elections. That is the legal burden. What is the standard of proof needed? The court seems unsure.

    In principle, it says, this should be above a “balance of probability” but below “beyond reasonable doubt.” This means a place in-between the standard in a civil case and that in a criminal case.

    But the Supreme Court has also invented a dramatic new standard for the presidential election. A petitioner challenging a president-elect who has won in a first round election, as President Uhuru Kenyatta did, must provide proof beyond reasonable doubt. But what constitutional principle is the court vindicating here? None that one can readily see.

    All election results are about data. There are no gradations of winning. Why, then, in principle, should exactness in electoral thresholds, say 50 per cent plus one and 25 per cent in at least half the counties impose on a presidential petitioner the duty to discharge a higher standard of proof – than say an MP challenging a victor chosen on the basis of “a majority of votes cast?”

    Or maybe this is the Court’s method of radically curtailing the number of petitions that can be brought against the president-elect. Since most of the evidence of wrongdoing will be in the hands of the IEBC — or a similar body — it is extremely difficult to see how a petitioner could ever succeed.

    This cannot be what Kenyans thought a new Constitution was meant to do, shield an elected leader from being subject to an election petition. In fact, it seems more likely than not, that Kenya will never have a run-off election so long as a candidate can, by hook or crook, get himself declared elected. The onerous standard of proof would be incredibly difficult to discharge.

    The effect of this new standard is that a petitioner who questions the IEBC’s maths, as Raila Odinga and Gladwell Otieno did, is then subject to the same standard of proof as a person who says that a president-elect has won by corruption, bribery and conmanship.

    This is a giant jurisprudential step backwards. But even more troubling is whether this is the standard that the Court actually used in deciding these petitions. The judgment is completely hazy about what standard of proof it has applied to what issue in order to answer the specific questions raised in the petitions.

    But the court takes even bigger steps backwards in relying on the Nigerian cases. The point at issue is what effect IEBC’s illegalities should have on the validity of an election. The relevant law is Section 83 of the Elections Act. That Section is not a model of clarity. Paraphrased, it says that to invalidate an election in Kenya because of irregularities or illegalities either one of two conditions, but not necessarily both together, must be met.

    One, that the election has not been conducted according to the principles laid down in the Constitution and in written law or, two, that though the irregularities and illegalities have not violated constitutional principles they have affected the result of the election. The use of the word “or” in this section means that these two conditions are not cumulative, either one of them is sufficient.

    But that is not how Attorney General Githu Muigai, the Supreme Court of Kenya and the Nigeria cases cited as authorities are reading this provision. They say, instead, that the two conditions are cumulative. This means that a petitioner must prove that illegalities have been committed and also that those illegalities have affected the result.

    In law, “affect the result” means that without the illegalities somebody else, other than the person who won, would have taken the election. For Raila Odinga, this means that he was expected to prove that illegalities were committed and also that without those illegalities he would have won the election.

    But since the Court has created a new standard of proof, it seems that he needed to prove that he had won the election beyond reasonable doubt. The law as borrowed from Nigeria, combined with the new standard of proof, leads to this absurd result: Mr Odinga could show that the irregularities were so gross that everything about the election is in doubt. Such success in Court would not necessarily be to his benefit. The scale of illegalities could be such that he was unable to show beyond reasonable doubt that he, rather than fellow contestant Musalia Mudavadi, would have won the election. In that case, the result announced by IEBC would stand. This, surely, cannot be good law.

    Questionable jurisprudence
    That we have taken the nastiest Nigerian case law and embedded it in our new Constitution would shock the Nigerians themselves.

    Indeed a Nigerian colleague who has read the judgment is aghast: “It is tragic that the Court has relied on some of the most awful and questionable jurisprudence from the Nigerian Supreme Court on elections.”

    In lamenting thus, my friend echoes the views of his senior, Prof Ben Nwabueze, arguably Africa’s most accomplished comparative constitutional lawyer. Reviewing the very case law Kenya has now approvingly borrowed, Prof Nwabueze excoriated the Nigerian Supreme Court for its “discreditable” role in wilfully conferring judicial legitimacy on the 2003 and 2007 presidential elections in Nigeria.

    He lampooned the judges for failing to “appreciate that the question of who should rule Nigeria is not one to be decided by a perverse and narrow legalism, by the technicalities of the rules of evidence, practice and procedure and by considerations of expediency.”

    Another Nigerian scholar points to a more progressive line of cases: Alhaji Mohammed D. Yusuf v. Chief Olusegun A. Obasanjo; Buhari v. Obasanjo and the older case of Swem v. Dzungwe. These cases have applied the principle that best represents the meaning of our Section 83. In applying the first limb of Section 84, namely, that an illegally conducted election is invalid even if the result is not affected, Lord Denning stated the rule thus: An election conducted so badly that it does not substantially comply with the law is invalid, “irrespective of whether the result was affected, or not.”

    Another judge explained the reason: “An election which is conducted in violation of the principles of an election by ballot is no real election.” Similar reasoning had applied in the Hackney Case, an earlier decision. In that case, two out of 19 polling stations had been closed all day and 5,000 voters could not vote. That election was invalid.

    Conversely, the case of Gunn v. Sharpe applied the second limb of the principle: An election will be held invalid even if it substantially complies with the law so long as the result is affected. Here, the election was invalid because 102 ballot papers that should have been stamped had not been and this had affected the result.

    The core issue, to round off this discussion, is straightforward: Which of the two readings of Section 83 would promote the open, democratic, accountable government ethos of the Constitution? Certainly not the backward looking, mean-spirited, cramped reading of the law that weak-kneed Nigerian courts have foisted on the hapless public, and which our Supreme Court so happily borrows.

    Voters register: A milk-fed turkey to future fraudsters

    So much for the Court turning to Nigerian case law. However, matters don’t improve much when we turn to the second point, the Court’s conclusions on the voters register. Bluntly put, the Court’s decision on this point has kicked open the door to future election fraudsters.

    In rejecting the petitioners’ argument that there must be a Principal Register, the Court holds that there is no single document called the “Principal Register of Voters.” What there is, it says, is an “amalgam of several parts prepared to cater for diverse groups of electors.”

    This, surely, is a non sequitur. It does not follow from the fact that the law accepts that a voters register can be broken down into sub-registers and stored in multiple forms, manual and electronic, that therefore the law does not require the IEBC to “publish and publicise” a principal register. On the Court’s holding, the voters register of the future will be what the IEBC says it is at whatever stage of the election.

    Indeed, this is what IEBC appears to have been doing all along these past three months. Four documents have been called Voters Register: the Provisional Register of December 18, 2012 with 14,340,036 voters; the Gazetted Register of February 18, 2013, with 14,352,545 voters; the March Register, given to political parties on the eve of the election with 14,336,842 voters and the March 9, 2013 register which was put out with presidential results with 14,352,536 voters. It is this last, the Green Book, which the Supreme Court now treats as the legitimate Voters’ Register even though there is a Gazetted Register, that of February 18.

    Does it matter? On the face of it, it does not seem to. After all, there is a difference of only 12,509 voters between the register of February 18, 2013 and that of December 18, 2012. A difference of less than one per cent of registered voters between the highest recorded and lowest recorded number of voters is, as the IEBC said, statistically insignificant.

    Yet if we look behind the small discrepancies between the global totals, we see huge variations in regional and constituency numbers. There are large subtractions from and even larger additions to the register after December 18, 2012.

    Arguments

    In open court, during the hearing, the arguments seemed stuck on explaining the 36,236 voters who the IEBC said were physically disabled but eligible voters without biometrics. The Court accepted this explanation; after all, it is hard to criticise the cartel of good intentions, among whom the IEBC numbers.

    However, the law is that even disabled people should have registered by December 18, 2012. There is therefore no reason for them to be added to the Register only after the Principal Register has been gazetted, that is after February 18, 2013. But even if one discounts this number, there is still a lot more explaining for IEBC to do.

    Consider this: Shortly after December 18, 2012, some 13,790 voters in Coast and Nyanza were subtracted from the register; 50,102 voters were subtracted from the register in Nairobi and 2,938 voters were subtracted from Western Province register. These subtractions seem plausible: They may be cases in which essential personal details are missing and IEBC had to remove the names from the record. But, and this is the question the judgment never asks, why are there also so many additions? In Central Province and Rift Valley, 68,836 voters were added to the register; 6,604 voters were added in North Eastern and 4,222 voters were added in Eastern Province.

    All these facts were pointed out in the petitions: IEBC did not explain any of the additions; it did not explain why Makueni Constituency had four different voter registration figures for the presidential election, the governor election, the senator election and for the national assembly election. It did not explain why Othaya Constituency had three voter registration figures: 46,848 at the close of registration; an additional 383 by voting day and a total of 47,293 on the final announcement.

    Even more damning, the petitioners said that IEBC had tinkered with the Register in 45 out of 47 counties, adding between 101 and 8,516 new voters in particular constituencies. In Turkana County alone five constituencies got added voters: Loima got an additional 4,519 voters; Turkana Central another 8,516; Turkana East, 1,867; Turkana North an additional 5,122 and Turkana South another 3,957.

    In West Pokot County, Kacheliba received an additional 1,911; Kapenguria a further 4,229; Pokot South another 4,988 and Sigor a total of 1,964. The five constituencies in Trans-Nzoia County received 13,288 new voters.

    Two questions arise. Are these additions lawful? Would these numbers have affected the result? Since the Court’s judgment does not analyse this evidence, it does not answer either of these two questions. The judgment assumes, without analysis, that the integrity of the Register had no effect on the result.

    That is a dubious assumption: Small numbers eventually add up. If you had a computer programme that stole 10 votes per station in 25,000 polling stations, the national tally of stolen votes is a quarter of a million votes. With a fluid register, the theft would never be detected. This means that allowing the IEBC to keep an indeterminate register, as the Court’s decision most surely has done, is to gift a milk-fed turkey to future fraudsters.

    But we do not have to speculate how the register could affect the result. Let us use the three post-December 18 registers to simulate the effect on the results of the 22 polling stations that Mr Odinga had challenged and that the court had had re-tallied.

    Using the registration figures in the Form 34s from these polling stations, 16 out of the 22 polling stations had more than 100 per cent voter turnout. If you use the figures in Form 36 or in the Register of the 18th of February, 18 out of 22 would have had more than 100 per cent voter-turnout. Finally, if you used the registration figures in the Green Book, which neither the presiding officers at the polling stations nor the returning officers at the constituency level had used, two polling stations would have more than 100 per cent voter turnout.

    In law, the results from a polling station that reports more than 100 per cent voter turnout should be cancelled. So, take your pick. Is the IEBC to cancel the results of 18 polling stations? Or 16 polling stations? Or two polling stations?

    This naturally leads to the third point, how the tallying was done and whether the Court’s conclusion on the issue is sound. Here, there are two issues: One, the IEBC’s number-work and two, the status of provisional results vis a vis the final result.

    The petitioners argued that provisional results are needed to validate final results. From this it followed that without them, final results are invalid. The Court judgment disagrees. It implicitly reads Regulation 82, and Section 39 of the Elections Act, as imposing no requirement that final results be verified against provisional results. The Court comes to this conclusion in a roundabout way. It asks and then answers a question that was only tangentially before it: Are final results invalid just because provisional results were not electronically transmitted?

    Notice though. By framing the issue thus, the Court has erected a straw man that it has then demolished with aplomb. The straw man allows the Court to duck the difficult question of how “to verify and validate final results without provisional results” and to answer, instead, the easier question “whether the means of transmitting provisional results affect the validity of final result.”

    Does this matter? The poignant truth is that it does. After the 2007 crisis, Justice Kriegler recommended electronic transmission of results. In the rules that were subsequently drafted, results from polling stations, transmitted electronically, would be provisional. And there are two senses in which polling station results are provisional.

    First, in Kenya there is no electoral unit that corresponds to a polling station. Technically then, a result announced by the presiding officer at the polling station is not really a result. Legally, at least in petition law, a result refers to an identifiable winner or loser. To the extent that not a single polling station gives such an outcome, all the results announced there and put in Form 34 are provisional until cumulated with other polling station results to give a final result, whether for the MP, the governor or the president.

    Second, the law places polling stations results on provisional “probation” to allow verification before a final valid result can be announced. That process involves cross-checking crucial facts: Have more people voted than are registered? Did ineligible voters vote?

    Seen thus, the question of whether the failed electronic transmission of provisional results affects the validity of the final result is a red herring. The point is that transmission failures left IEBC without the means to cross-check and verify tallies in Form 36. But that failure is of IEBC’s own making since they made no effort to gather Form 34s. Without Form 34s, how did IEBC actually verify the final results that it announced to the public?

    Manual or electronic

    Unfortunately, the way the Court settles this issue allows the IEBC to affirm and deny what it pleases when it pleases. Consider. IEBC says — and the Court agrees — that Kenya’s voting system is basically manual. Electronics are mere facilitators. Once you grant that, the conclusion follows as a matter of logic: The failed electronic transmission could not have affected the validity of the presidential result.

    This piece of sophistry should have invited a sharp rebuke: If electronics are surplus to requirement, what safeguards had IEBC put in place to tally and verify final results against Form 34 using the manual system? IEBC never answers that question mainly because it has been allowed to speak from both sides of the mouth: It can impugn technology as failure-prone and also evade the duty to create a fail-safe manual system to do that which the technology should have done.

    The lack of clarity in the Court’s judgment about IEBC’s duty to ensure that final results could be verified against provisional results means that the country had to accept whatever numbers the IEBC gave. As subsequent reviews have shown, especially reviews done by Dr Seema K. Shah, the IEBC cannot be trusted with registers, technology or numbers. Dr Shah observed and reported on the Court-ordered tally of the 33,400 constituencies. Her report is a collection of IEBC’s riotous assembly of mis-tallies and contradictions.

    Many Form 34s had more votes cast than registered voters. In Turbo constituency, polling station 69, stream 2, some 784 votes were cast but only 755 were registered. In polling station 71, stream 2, there were 741 votes cast but only 716 were registered. In Kacheliba, polling station 112, there were 215 votes cast but only 214 registered voters. In these polling stations, the results should have been cancelled.

    In some Form 34s, not all presidential candidates were listed and, therefore, one cannot tell whether they got no votes or that their votes disappeared. In Baringo South, polling station 91, stream 1, only Uhuru Kenyatta, Raila Odinga and Paul Muite appeared on Form 34.

    In many Form 34s, the numbers do not add up. In Kacheliba constituency, polling station 102, though the votes cast are recorded as 0, there are 170 rejected votes and 170 valid votes. In Baringo South, polling station 117, stream 1, there were 133 valid votes and 0 rejected votes, which should total 133 votes cast. The figure for votes cast, however, is 134. In Cherangany, polling station 2, stream 5, the number of valid votes is 332 and the number of rejected votes is 4, which adds up to 336 total votes cast. The number of votes cast, however, is 340. In Turkana North, polling station 12, the number of votes cast, 340, does not equal the number of valid votes, 340, plus the number of rejected votes (5).

    Many Form 34s are missing altogether. There is no Form 34 for polling station 84 or for polling station 99 in Turkana North. Polling station 99 does not appear in the list of polling stations published on the IEBC website on February 24, 2013, but it does appear in the paper gazette. Form 34s for polling stations 92 and 113 in Turkana Central are missing.

    Looking closely at these numbers, it is not surprising that some of the same constituencies whose the registers had unexplained additions — in Turkana, West Pokot and Trans-Nzoia — have cropped up yet again. Are these coincidences?

    To be fair to the Court, one must ask what by way of report-back, its own scrutineers gave the judges. If they did get this information, why is it not reflected in their judgment? Or is it another case of it would have made no difference? Even if these numbers would have made no difference to the result, do they not in fact disclose that illegalities occurred?

    Spoiled votes: Supreme Court goes fishing in the Seychelles

    Let us now turn to the fourth issue, the question that took so much of the Court’s time: Do rejected votes count in computing the presidential percentages? Should they? Are rejected votes “cast votes” in computing percentages?

    The Court holds that rejected votes do not count. Though the Court’s conclusion can be criticised, as it is in this analysis, it has the merit of being clearly reasoned and properly explained. Why is the conclusion wrong then? The repealed Constitution said that the only votes that counted were the “valid votes cast.” The new Constitution says that it is “votes cast.”

    Relying on the language of the Elections Act, the Elections Regulations and a decision from the Seychelles interpreting remarkably similar provisions in that country’s Constitution, the Supreme Court concludes that “votes cast” in the new Constitution means exactly the same as “valid votes cast” in the old Constitution.

    There are two problems here: How to read clear language in law and two, what constitutional theory says about interpreting the Constitution. To the first point. In interpreting laws, words must be given their natural meaning. This rule is applied in all cases unless to do so leads to absurdities or the statute makes clear another meaning is intended.

    The petitioner did not show, as we argue below, that a plain reading of the “votes cast” phrase leads to absurdities. When the language is clear, the Court must assume that the Constitution means what it says. In this case, the Supreme Court had no need to go fishing in Seychelles.

    Second, in interpreting the Constitution, it is illegitimate to limit the broad language of the Constitution based on the language used in statute and regulations as the Court has done here. This is because of the hierarchy of laws: A regulation is only law because it is made under the authority of a statute and the statute is itself only law because it is made under the authority of the Constitution. The legitimacy of law flows backwards to the founding document.

    The Court’s method of teasing out the meaning of a phrase in the Constitution by parsing similar phrases in inferior law suffers a double infirmity: It is wrong in theory and it is prohibited by the supremacy clause.

    But there is a point of principle why rejected votes should count. The first limb of that point arises from the right to vote. The second limb arises from why the Constitution sets high electoral thresholds for the president in the first place.

    As regards the first limb, the Court, like the petitioner here, assumes that the right to vote is equal to the right to choose one of the candidates on ballot. This assumption is wrong. The right to vote has three elements: The right to make a choice from among the candidates on the ballot; the right to refuse to participate in the election by abstaining and the right to cast a protest vote by rejecting all the candidates on the ballot. The right to cast a protest vote can be expressed by deliberately spoiling a ballot.

    Saying that rejected ballots don’t count as “cast votes” implies that the person who goes to the queue and casts a protest vote against the candidates on the ballot is treated exactly as the one who stayed home. That is not the theory of our Constitution. Not if we take its language seriously. By equating the right to vote to a right to agree with one of the choices on the ballot, the Supreme Court has radically impoverished the meaning of the right to vote.

    The second limb of this argument is numerical. The new Constitution wants to ensure that no candidate can win the presidency without a majority of the votes cast, more than 50 per cent, and a reasonably broad geographical base, 25 per cent of at least twenty four counties. Only if a candidate makes this threshold in the first round should he or she be declared elected president. A candidate, and the country, must suffer the inconvenience of a second round of elections to do what the Constitution requires. How do the rejected votes contribute to this math? Consider a simple election with 100 voters, two hugely unpopular candidates and 50 per cent plus one of “votes cast” needed for victory.

    Some 60 per cent of the voters protest against both by spoiling their ballots. Candidate A, Grand Butcher, gets 35 votes and candidate B, Floating Scum, gets five votes. If you include rejected votes, Grand Butcher has only 35 per cent of the votes cast and cannot win in the first round. If you exclude rejected votes, Grand Butcher wins with 87.5 per cent of valid votes cast.

    In such cases, a protest vote, as David Ndii points out to me, can be used to achieve either or both of two things: Deny a disliked candidate a first round victory or, if not that, long-term legitimacy. But what happens in the run-off? What is the point if both thugs will be running again? The point is that there is an incentive for either or both candidates to make themselves more pleasant to the electorate in the second round. Or, it may be that the huge protest vote may persuade the authorities that they need to tighten ethics laws so that Butcher and Scum don’t seek office in the future.

    Did the technology fail or was it pushed?

    Finally, we turn to the Court’s holding on technology failures. The Court takes judicial notice that technology, including electoral technology, is “rarely perfect.” With that assertion it shuts off its own factual inquiry as to whether technology failed or was pushed.

    The IEBC said the technology failed. The petitioners said that the failures were so systemic that they show culpable negligence.

    Again the Court’s short way with these arguments is way too short. When a country has invested Ksh10 billion or over a $100 million dollars in electoral technology in order to enhance the fairness of its elections and to eliminate fraud, it seems like a cruel betrayal to kill off the issue of why the pricey machines failed with the dispositive statement that “technology fails.”

    There were very specific questions asked by the petitioners. IEBC did not convincingly respond to any. Why was the Electronic Voter Identification Device, EVID, never deployed? The IEBC had publicly assured Kenyans before the election that it had put in place mechanisms to ensure that the technology would work. Why did IEBC buy the kit but not get the connectivity required to make it work?
    Why did the IEBC set up the authentication system on a GPRS platform knowing that this platform’s low capabilities could impair performance? Given GPRS data transmission rates of 56-114 kbps, against other higher performance locally available platforms such as EDGE (200 Kbps); 3G (above 200 kbps) was this a reasonable or responsible decision? Are these the standards an election court expects of a reasonable elections manager, like IEBC?

    Instead of asking these difficult questions, the Court actually cut the IEBC more slack. It took judicial notice that many polling stations in rural Kenya are primary schools without electricity. But why should that excuse the IEBC?

    IEBC toured the world in search of appropriate electoral solutions. Even at that early stage, it knew the state of power connectivity in Kenya. Knowing that the BVR system relies heavily on a steady supply of electricity for the laptops on which the systems run, was the IEBC deliberately misleading Kenyans when it said it had put in place measures to make the technology work?

    If that announcement were not mendacious, what plans had IEBC actually made to provide backup power beyond the life of the one battery the computers started out on? In some stations, batteries had died within one hour of the opening of the polling. Is it technology failure or recklessness when the battery on the computer fails even before voting has begun?

    On the results’ transmission systems there are even more questions, all raised by petitioners but none answered by IEBC nor broached by the Court.

    Were the mobile phones that were to be used to transmit the results actually configured in advance or tested and confirmed to be fit for the purpose? Was the server that was set to receive the results itself configured correctly? Was it ever tested? Why was there no in-built redundancy in the system as there ought to have been if the system were expected to be fail-safe? How was it possible that the loss of one server brought down the whole system?

    Instead of engaging with these issues, the Court accepts the reverse logic urged on it by the IEBC, namely, the argument that the technology was meant to back up the primary manual system. This bizarre logic says, in effect, that Kenya set up a more accurate electoral system — BVR, EVID and Electronic Results transmission — in order to act as the back-up to the inaccurate and inefficient — and already proven to be so — manual system.

    This is the first — hopefully the last — that we shall hear of a country buying state-of-the- art computer technology in order to provide an additional layer of security for its stone-age manual systems. In forward thinking countries, inefficient manual systems are at the bottom of the pile in the hierarchy of back-ups for layers of overlapping technologies.

    To support its wobbly case, the IEBC marshalled two cases from the Philippines that ostensibly stand for the proposition that manual systems trump technology. According to the Kenya Court’s helpful summary of those cases, “the plaintiffs had based their claims on fears which they had, sparked by potential abuse and breakdown of technology, and the effect of this on the integrity of the electoral system.”

    That completely mis-describes the cases. One case had nothing to do with technology, the other case was full of praise for technology. The first case, Douglas R. Cagas v the Commission on Elections, was based on a procedural technicality. The issue of electronic machines was irrelevant to that question and was sneaked in by the petitioner, Douglas R. Cagas, who had won the seat of Governor of the Region of Davao del Sur, just so as to frustrate the petition of his competitor, Claude P. Bautista.

    Cagas wanted the Supreme Court to dismiss Bautista’s petition, which was yet to be finalised by a division of the Electoral Commission on the basis that the Court had already held that election machines were reliable and accurate in the earlier case of Roque, Jr. v. Commission on Elections. His argument was that since Bautista’s petition wanted to impugn a technology already endorsed by the court, it should be thrown out. The Court refused. The conclusion then is that in the Roque case, the court was strongly in favour of electoral technology. In the Cagas case, the court merely refused to create a presumption of infallibility of technology.

    Stringent rules

    The unhappy feeling one comes away from this judgment with is just how stringent the standard that the Court imposes on petitioners is. And, conversely, save for the rather tame recommendation that IEBC be investigated and maybe prosecuted, just how so very lenient the standard by which IEBC’s performance has been judged is.

    To conclude: In the opening paragraphs of this lengthy but unpersuasive judgment, the Court grandly hoped that the case would be “viewed as a baseline for the Supreme Court’s perception of matters political.” One hopes not; the Supreme Court can do better.

    Does this criticism impugn the decision that the Court has reached? Not really. Ultimately, it not whether one wins or loses in court, it is whether the loss or win is seen to be just. Parties look to the reasons that the Court gives to see why they have lost. Judicial reason is the primary tool by which we hold judges to account. The public judges the judges by the soundness of the reasons that they give for their decisions.

    Sadly, as the saying is, in this judgment, the Supreme Court has only given us reasons that sound good, not good, sound reasons.

    Wachira Maina is a constitutional lawyer
    http://www.theeastafrican.co.ke/OpEd/comment/Five-reasons-Kenya-Supreme-Court-failed-poll-petition-test/-/434750/1753646/-/view/printVersion/-/e8srqh/-/index.html

  • Useless Supreme Court
  • Scrutinising Of Election Results: What Didn’t Reach The Supreme Court Judges

    Saturday, April 13, 2013 – 00:00 — DR SEEMA SHAH

    After observing the Supreme Court’s scrutiny of election results from the polling stations and the constituencies, I was surprised that the report presented to the judges barely scratched the surface of what we found.

    On the first day of the pre-trial conference, before the hearings even began, the Supreme Court judges ordered judiciary staff to conduct a scrutiny of Forms 34 and Forms 36.

    The court also ordered a re-tallying of 22 contested polling stations, alleged to have had serious problems. The order was a welcome one, as it affirmed hope in the independence of the court and seemed to indicate the judges’ commitment to fully understanding the myriad problems alleged by petitioners.

    Soon after the process began, however, it became clear that it was fraught with problems. Security during the scrutiny was severely lacking. Judiciary employees, as well as agents for the petitioners and respondents, were initially divided into eight stations.

    Each group was tasked with scrutinising all submitted Forms 34, which consisted of manually entering all the numerical data from Form 34 into a spreadsheet. All data from the eight scrutiny stations would then be transferred onto one central computer using flash drives.

    It is unclear when these flash drives were issued and what the protocols were to secure them overnight. There was also little security around the central computer, which was intermittently surrounded by one group of people or another.

    After these issues were brought to the attention of the judicial staff, armed guards were brought in. While that helped secure the room overnight, it did little to secure the main computer receiving all the data.

    Omitted from the report

    Our observation notes covering just one day of scrutiny showed 64 missing forms 34 from 14 different constituencies. The report to the judges, on the other hand, showed that Forms 34 from only 10 constituencies could not be found.

    Notably, our notes show several instances in which the number of votes cast exceeded the number of registered voters. Those were not the only omissions.

    On many forms, the numbers did not add up. For instance, the number of votes cast, as recorded, was not always the sum of valid and rejected votes. There were also differences between the aggregate number of valid votes as written out in numerals and in words. Which result was announced, the one in words or the one in numerals?

    We also noted multiple copies of the same form, some of which contained identical figures and others of which included non-identical figures. Some forms were missing results for certain candidates, including instances where all candidates were not listed, or were listed with no corresponding result.

    Often, figures were missing from the documents, and the numbers were illegible or had been changed without an authorising counter-signature. How did the judges end up receiving a partial report of the scrutiny?

    Flawed methodology

    The methodology for scrutinising the Form 36 – the document used to collate results at the constituency level — was also flawed and failed to show important discrepancies.

    Our analysis showed that in some cases, the numbers for a particular polling station, as recorded on Form 36, were different from what was recorded on the corresponding Form 34.

    There was no way to identify the problematic polling stations without using a polling-station level scrutiny of Form 36. Moreover, the methodology failed capture problems like missing polling stations on Form 36.

    Based on our observation, the judiciary review also failed to highlight important differences between Forms 34 and Forms 36. It did not show, for instance, that in Isiolo North, the total number of votes calculated for Uhuru Kenyatta from all Forms 34 was 17,675.

    On Form 36, Kenyatta is reported to have won 18,489. Where did 814 extra votes come from? In Turkana North, the Form 34 total for Kenyatta was 3,567, but Form 36 showed Kenyatta to have won 3,507 votes, which is 60 less votes than what was on the primary document.

    Such discrepancies can be found for almost all the candidates’ results.It is also worth noting that it was impossible to fully observe the scrutiny process, because each station simultaneously reviewed multiple constituencies.

    This meant that observers had to somehow keep an eye on all the different constituencies at the same time. Since there were only 10 observers from each side, it is not hard to see how being able to keep up with all the forms was difficult.

    Also, each station was equipped with a large screen, which was meant to enhance transparency by showing the data being entered by judicial staff. Since more than one constituency was being entered at each station, though, not all data entry was transmitted to the screen.

    Turnout beyond 100 per cent

    It is now clear that the judiciary staff never carried out a re-tallying of the 22 contested polling stations as ordered. Instead, they simply reviewed and entered the data from the contested stations’ Forms 34 and Forms 36 into its spreadsheet.

    In this way, then, it was no different from the general scrutiny of the forms. Inexplicably, its report on these stations highlighted only five as problematic. This was surprising, given that a simple calculation using the recorded figures showed four important anomalies.

    First, in 16 polling stations, voter turnout as calculated using Form 34 and the principal register exceeded 100 per cent. The largest recorded turnout in this category was 301 per cent.

    Second, in 18 polling stations, voter turnout as calculated using Form 36 and the principal register exceeded 100 per cent. The largest recorded turnout in this category was 450 per cent.

    Third, and even more striking, was that there were two polling stations with voter turnout in excess of 100 per cent when using the green book, which the IEBC argued was the actual, complete register. One polling station in this category showed a 238 per cent turnout.

    Lastly, it is only in one polling station that the sum of registered voters in the principal register and the special register equaled the number recorded in the green book.

    Since the Respondents explained that the principal and special registers (as well as 12 trainees) together totaled the green book, the observed discrepancies are highly problematic and clearly undermine the Respondents’ claim. It will be interesting to see how the Supreme Court judges explain this when they release their judgment in less than 10 days’ time.

    Dr Seema Shah was an observer for the Africa Centre for Open Governance during the scrutiny of results documents ordered by the Supreme Court

  • Judgement By The Supreme Court On Presidential Election Petition Left Me Muddled!

    April 17, 2013

    By: Kofi Adwensu, Accra.

    Like many Ghanain members of the Bar I was eager to delve into the Kenyan Supreme Court’s decision in the Consolidated Presidential Petition that was delivered today.

    Many lawyers across the country had put their photocopiers and Scanners ready, fingers poised on the ‘print’ button. After all with a star studded bench (literally and figuratively) that adjudicated the Presidential dispute in Kenya we in Ghana were certain that Raila Odinga vs Uhuru Kenyatta would provide fodder as precedent for use in our own Petition. I started with eagerness by page 50 I was confused. Was this a treatise?

    Or a liturgy? Even with my basic knowledge of the Kenyan Constitution most of the findings flew in the face of Constitutionalism. From claiming its determination to steer clear of technicalities to then brandishing the sword of legalese at every turn, to interpreting the law on rejected votes in contravention of the provisions relating to tallying to giving an insipid summarization the judgment left a sour taste in one’s mouth.

    Fuddled? No muddled is more like it. One may want to blame it on the short period of time that the Court had to deliver this decision but what about the advocates who spent sleepless nights preparing pleadings and evidence?

    The whole judgment can be summarized in the incredulous finding that the Petitioner ‘should have pleaded his evidence in the Petition and not in submissions’. In the end after reading the judgment for the third time I gave up in despair.

    Well, let us enthrall ourselves with our very own Supreme Court contest. I am sure that our Judges will unlike our brothers in the East give due regard and respect to our litigators chilvarly. The NPP’s presidential candidate, Nana Akufo-Addo’s prayer to the Supreme Court to annul 4,670,504 votes seems in context of the Kenyan case to be an impossible task. Oh, well. One can only try”.

  • Supreme Court was ‘loser’ in Kenya election, forum told
    By KEVIN J KELLY
    Posted Wednesday, April 24 2013

    NEW YORK – The election decision rendered by the Supreme Court is damaging to its credibility, a Kenyan activist and a US scholar declared at a forum held in Washington on Tuesday.

    Maina Kiai, head of a civil society organisation in Nairobi, and Joel Barkan, a US think tank expert on African governance issues, both suggested that the court should have ordered a runoff between Uhuru Kenyatta and Raila Odinga.

    The two commentators agreed that while Mr Kenyatta clearly won a larger share of the vote than Mr Odinga did on March 4, there was reason to suspect that Mr Kenyatta’s actual tally did not exceed 50 percent.

    The court made a political decision” in its ruling that a runoff was not required, Prof Barkan said. Calling its unanimous opinion “very shallow,” Mr Barkan said “the court itself was the big loser” and had “essentially undermined its own authority, going forward.”

    Mr Kiai used similar language in criticising the court’s performance, characterising its election ruling as “one of the most shallow judgments I have ever seen.”

    “As civil society,” Mr Kiai added in his remarks at the National Endowment for Democracy, “we’re not challenging the results — we’re challenging the process. It’s important to set the bar higher for future elections.”

    There is “no way we can change the fact that Uhuru Kenyatta is president of Kenya,” Mr Kiai said.

    But he pointed to what he said were many small-scale manipulations of voting results that, taken together, enabled Mr Kenyatta’s reported tally to exceed the 50 percent threshold.

    Prof Barkan did not offer as firm a conclusion in his assessment of the election results.

    “I don’t think we’ll ever know whether they won 50 percent plus one,” he said in regard to Mr Kenyatta and Deputy President William Ruto. “My own sense is they did not, but they did win a plurality.

    I don’t think the vote was stolen, but the election was a highly incompetent one.”

    Mr Kiai added that the focus should now be on how Mr Kenyatta and Mr Ruto respond in the coming months to the cases brought against them in The Hague.

    “The ICC is the only game in town in terms of accountability,” Mr Kiai said.

    Prof Barkan offered a different view, saying, “The ICC did itself a disservice” in its handling of the Kenyatta/Ruto cases. He cited lengthy delays in the court’s process, suggesting that former Chief Prosecutor Luis Moreno Ocampo did not serve the court well.

    In considering where advocates of democracy in Kenya should place their attention, Prof Barkan said, “I wouldn’t focus so much on the ICC case. I would focus on whether Uhuru will stick to the very admirable markers he laid out in his inauguration speech.”

  • Supreme Court too casual in ‘Raila Vs IEBC & Others’
    Wednesday, April 24 2013 at 00:00 GMT+3
    By Elisha Ongoya

    On 30th March 2013, the Supreme Court delivered its unanimous decision in what had been billed as “the most important case of our time”. This was the very last day that the Supreme Court had, in law, to decide matter.

    The Court then ordered that “the detailed judgment containing the reasons for decision of the Court will be issued within two weeks from today.” This latter aspect was part of the orders of the court.

    On 16th April 2013, the 16th day from the date of the decision, the court sat to deliver the decision. No explanation was given for the delivery of the decision outside the timelines set by the court. This omission, to an observer of the judiciary’s recent investment in courtesy, was telling. This was casual.

    The practice of court is that when the court summons parties in open court as it did, it reads its judgment, dates and signs it. Again, the judgment was never read. The Chief Justice pronounced the manner in which the decision was to be disseminated and the process ended up being a witnessing of the “signing ceremony” of the decision.

    This, for what had been billed as “the most important case of our time”, was casual.

    The content of the judgment will definitely be a subject of detailed inquiry by the general public. This space is scarcely sufficient for such detailed inquiry. However, certain snippets from the judgment would give us the degree of seriousness with which the judges treated the matter that was before them.

    One of the instruments of implementation of the mandate of the Supreme Court in Kenya is the Supreme Court Act. At Section 3, the Act sets out its objectives and therefore the objectives of the Court.

    I suggest that a sound detailed inquiry of the soundness or otherwise of the decision of the Court in this matter should be reflected against this very sound statutory objectives of the institution.

    The judgment reveals lots of material internal inconsistencies in the reasoning. I have selected a few aspects for this contention. On whether rejected votes ought to have been included in determining the final tally of votes in favour of each of the candidates by the IEBC, the court restated the express provisions of article 138 of the constitution which requires that for a person to be declared president-elect, such person must, among other things have received “more than half of all the votes cast in the election”.

    The court proceeded to reason at paragraph 260 of the judgment: “What are “all votes cast?” Do these include even the “rejected votes” which, of course were cast? Or are they limited to the properly marked ballots which figured in the vote tally for the individual candidates?

    It is apparent that the court had acknowledged that in respect of the so called rejected votes, they “of course were cast”. Yet the constitution talks of “all votes cast”.

    Against this background, the court concluded at paragraph 285. This of course begs the question, when are some “cast votes” not “votes cast”?

    What will interest analysts is the court’s reliance on the decision from Seychelles to reach the above conclusion from the Constitutional Court of Seychelles in Popular Democratic Movement Vs Electoral Commission (see para 266).

    What will confound many students of law is that Burhan J was actually a dissenting judge at the Seychelles Constitutional Court in the quoted decision. Can a decision of a dissenting judge be taken as the decision of the court from which it is cited? This too was casual.

    Original record
    Other matters that will interested analysis in this case is whether the court ever complied with its own order or scrutiny and re-tally of votes that it had made on its own motion in the matter.

    Such failure of the court to observe its own orders without any explanation comes across as casual.
    The court further found that from the 33,400 polling stations in the country, only 18,000 polling stations were scrutinised. The question the court never answered was why didn’t IEBC avail the other about 15,000 forms for scrutiny? How verifiable were the results in light of the missing forms? Such lack of interrogation was casual.

    Equally the court found that “In addition, the aggregate results of Form 36 votes from 75 constituencies were missing.”

    If aggregate results in the final results-declaration forms in 75 constituencies were missing, in the court’s own scrutiny of the documents, the court ought to have asked “so what did the Commission declare in respect of those constituencies?” Such a lack of interrogation too was casual.

    And what with the court’s finding that the “Green Book”, though not provided for in law, it is not apparent that such an original record required to be provided for by law? Was the court approving of the conduct of the elections with instruments outside the law? Does that promote the rule of law of arbitrariness? This too was casual.

    From the foregoing it would appear that the judgment of the Supreme Court in Kenya in Raila Odinga Vs The Independent Electoral and Boundaries Commission and Others is a sad commentary on a number of aspects.

    It is a sad commentary on how not to evolve jurisprudence. It is a sad commentary on how not to entrench a culture of constitutional accountability in governance. It is a sad commentary on how not to portray judicial honesty.

    It is a bad example to courts subordinate to the Supreme Court. It is a sad commentary on how not to enhance to confidence of the citizens in the electoral system.

    Writer is an Advocate and Law Lecturer Kabarak University School of Law.

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