Kenya is now preparing for another grueling presidential election in 60 days after the Supreme Court annulled President Uhuru Kenyatta re-election, citing massive irregularities and non-compliance with the Constitution.
In a majority decision of four against two, the judges set a precedence, being the first time a court was invalidating the election of a president in Africa, and in the process gave National Super Alliance (NASA) leader Raila Odinga another chance to battle it out for the presidency.
Chief Justice David Maraga, his deputy Philomena Mwilu and judges Smokin Wanjala and Isaac Lenaola found that the presidential election was not conducted in accordance with the Constitution and elections laws. Justices Jackton Ojwang’ and Njoki Ndung’u dissented, saying the elections were credible.
Null and void
“We are satisfied the election was not conducted in accordance with the dictates of the Constitution and election laws. As a result, a declaration is hereby issued that the presidential election on August 8 was not conducted in accordance with the law rendering it unconstitutional, null and void,” ruled the judges.
The reaction was fast and furious. Raila and his team immediately shifted focus to the Independent Electoral and Boundaries Commission (IEBC), saying they must take criminal responsibility for their act and that they will not allow the current team to organise and supervise fresh elections.
“The commission is on trial. What they did was a scandal but the Supreme Court has done Kenyans proud by restoring the court’s dignity,” said Kalonzo Musyoka.
Raila said the decision was not only a victory to the people of Kenya but to Africa, given that it was the first time a court had nullified the election of a sitting president. NASA’s “journey to Canaan is unstoppable”, he said.
Whereas the NASA brigade praised the Supreme Court for “standing with Kenyans” and living up to its billing as a just arbiter of election disputes, President Kenyatta’s lawyer Ahmednasir Abdullahi claimed it was a political decision with no sound legal grounds.
“This was a very political decision you have made, and we will want you to tell us in your analysis of the judgement how the big margin between Mr Kenyatta and Mr Odinga happened,” said Ahmednasir.
In reaching their decision, the judges framed four issues for determination; whether the 2017 presidential election was conducted under the principles of the Constitution and the laws relating to the election; whether there were illegalities committed; whether the irregularities committed affected the integrity of the election and what consequences to follow.
At stake was the destiny of the country, and even before delivering their judgement, Justice Maraga gave a considered view of what informed their findings.
“The greatness of a nation lies in its fidelity to its Constitution and its laws, and above all the fear of God. Election is not an event but a process from the beginning to the end. We will be able to demonstrate that the process was not done in accordance with the law,” said Maraga.
According to the judges, their decision was based on analysis of Article 10 and 88 of the Constitution and Sections 31, 44 and 83 of the Elections Act.
On whether the presidential election was conducted in accordance with the Constitution and electoral laws, the judges found that after considering various articles in the Constitution and relevant statutes governing elections, it did not meet the threshold.
“We find that the IEBC failed and neglected key provisions of the law and as a result, we find that the declaration of the presidential results was done in a manner not consistent with the Constitution,” said Maraga.
As to whether there were irregularities committed by the commission during the presidential elections, the majority judges ruled that IEBC committed substantial irregularities during transmission of results.
As a consequence, the judges said the irregularities affected the integrity of the whole process and justified their decision to nullify the presidential election and order fresh polls within 60 days.
The Supreme Court, however, exonerated President Kenyatta from any wrong doing, noting that there was no evidence to show that he was involved in any irregularities.
“The court found no misconduct on the part of the third respondent (Mr Kenyatta),” the court found.
The CJ said the election of a president is a process -- voting, transmission and tallying -- that the IEBC ought to have followed the Constitution and the election laws to the letter.
The judges in their final order declared that the presidential election conducted on August 8 was not done in accordance with the Constitution, rendering any outcome unconstitutional, null and void.
They ruled that President Kenyatta was not validly declared president-elect, and that the IEBC, when conducting fresh elections, should ensure it complies with all constitutional provisions and elections Act.
NASA built its arguments on missing Forms 34A and 34Bs, hacked transmission system and failure to comply with constitutional provisions during the electoral process.
According to the alliance, the missing forms accounted for more than seven million votes while those submitted by the IEBC had no security features, others were not from the manufacturing company while others were not properly marked.
Altered results
In defence, IEBC and President Uhuru said the election was free and fair and reflected the will of the people. The commission argued that it never altered any result from the constituencies and polling stations, and that forms 34A and 34B that NASA was complaining about were provisionals posted in the public portal.
On whether the presidential election was conducted in accordance with the Constitution and the electoral laws, NASA cited several articles in the Constitution and the Election Laws to back their arguments that it was not about how many votes each candidate got but whether the electoral process complied with the law.
IEBC argued that it complied with all constitutional provisions and electoral laws, and denied claims that results announced were computer-generated.
President Kenyatta, on the other hand, argued that the election was free and fair and was conducted peacefully in accordance with the law and international practice.
NASA argued that IEBC servers were manipulated and as a result, the election was not purely electronic as envisioned by the Election (Technology) Regulation Act. As a result, transmission of results from polling stations to constituency and national tallying centre were interfered with.
But IEBC countered the arguments saying they had the option of using either a purely electronic system or delivering the results manually.
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