There Was No Basis to Upset the Will of the Voter, Says Justice Njoki Ndung'u

In perhaps one of the Supreme Court’s most comprehensive and compelling judgements, Njoki Ndung'u repeated time and again, that the will of the voter is supreme and in the absence of evidence, a Court must not interfere with the people’s choice.

She analyzed the entire body of evidence deposited in Court by the IEBC on 20th September, 2017, 48 hours after the Petition was filed against the allegations by Raila Odinga and noted that the Forms used to declare the elections were all proper in Form and content and the Majority did not therefore have a basis to overturn the election of President Uhuru Kenyatta.

Justice Njoki faulted the Majority on several things:

1. Not using the certified Forms filed in Court by the IEBC to verify the allegations made by Raila Odinga.
2. Assuming that since there were more votes cast in favor of the President compared to Governors and Members of Parliament, that the IEBC had interfered with the result of the Presidential elections. She informed the Majority that the law allows a voter to cast only one ballot so long as the unused ballots were kept aside in tamper proof envelopes. A voter is not under any obligation to vote for all the six candidates in an election.
3. Finding that the IEBC refused to obey the Orders of the Court to avail technology yet, the Orders of the Court were very clear that the IEBC was expected to provide a read only copy of the logs in the servers (with an option to copy).
4. Deliberately overturning a previous decision of the Court on section 83 of the Elections Act to favour a finding of nullity.
5. Invalidating proper Forms on the basis of an exercise whose findings were not in conformity with the Forms filed by the IEBC in Court.

The judge considered the role of the Supreme Court in hearing a presidential election petition and noted that it was mandatory for the Court to make its determination only after thorough and proper consideration of the evidence, She was of the view that the Majority proceeded with the determination of the case akin to a Court sitting on Appeal. The majority had no reference to the primary evidence filed in Court soon after the Petition, which proved that the election was free and fair.

In her opinion, Kenya’s electoral system is primarily manual with a complementary mechanism of technology. Therefore in the areas that were not covered by 3G and 4G Network (11,000 polling stations), manual transmission of results was the proper mode of result transmission. She recommended a legislative reconsideration of the electoral law to clarify that technology is secondary to the manual transmission system.

She also explained the verification process in elections and indicated that there are various agents of verification including the IEBC, observers, the media, the public and the election court (any Court hearing an election petition). Therefore lack of security features or signatures from agents was not, by itself a reason to invalidate the election in a scheme of interlocking verification mechanisms. Nevertheless, she conducted a comprehensive analysis of all the 291 Forms 34B and the disputed Forms 34A and noted that the Forms were proper and where there were omissions, the same could not affect the result of the election. She emphasized that where the Court was in doubt, inspection of the ballot was essential.

In any event, she was of the opinion that the Court had powers to inspect other election material to verify the integrity of the elections. There was a verifiable paper trail which the Court could use to verify the various allegations and which was not used. The effect of the Judgement was to deny Kenyans their right to franchise.

Justice Njoki took issue with a part of the Majority that threatened to nullify a repeat election if the same errors occurred. Her view was that all the arms of government are reinforcing of each other and the Supreme Court as part of the Judiciary should not threaten parties with the prospective likelihood to appear before it in the future.

The result of the election was never in issue and the same was not shown to have been affected by the alleged irregularities or illegalities.

In Justice Njoki's assessment, President Uhuru Kenyatta was properly and validly elected as the President.