Where was the bombshell in ruling?

It was clear from the beginning after studying the online forms, that NASA had lost the August 8 elections. The evidence was there for everyone to see, including Raila and NASA. That is why their initial claims were about an alternative tallying centre giving them an outrageous victory; moles in the IEBC system and massive rigging, even without presenting a shred of evidence to back up any of these claims.

However, over the days that followed, and after extraordinary scrutiny, some of the NASA lawyers started noticing some minor discrepancies on the forms that were submitted and uploaded by the IEBC.

Negligence

A few became many. Some didn’t have the official stamp, others weren’t transmitted in the correct orders, while others had minor errors. It was clear that some individuals employed by the IEBC in the field did not understand or follow procedures in some cases.

Suddenly, all of NASA’s earlier outrageous claims, which they subsequently didn’t dare to bring up in court, were dropped like the embarrassing albatross around their necks that they had become. In their place were technical, bureaucratic and procedural claims. In fact, during the case, NASA lawyers were able to demonstrate that there had been a number of errors, glitches, malpractices, and a number of instances where electoral laws and the Constitution were disregarded by individuals in the IEBC system.

More specifically, the NASA layers were able to demonstrate that the constitutional requirement that Returning Officers, including the Presidential Returning Officer, must verify results before declaring them was not adhered to, and that in several instances statutory documents were not handled according to Elections Regulations and Laws.

Nevertheless, it was clear to all that followed the case that despite these instances, NASA lawyers were not able to show that those irregularities were sufficient to significantly affect the number of votes cast in favour of each of the presidential candidates.

Jubilee lawyers did not contest that there were irregularities, but they made a very strong case that there weren’t enough to adversely affect the overall outcome, and overturn the presidential election results.

For the Supreme Court justices to overturn the elections, they needed to agree, not that there were irregularities that everyone agreed on, but that the integrity of the result was in question.They needed a bombshell, or a smoking gun, which showed that enough of the voting was severely compromised as to be certain that the result was not in fact an expression of the will of the people.

It is clear that there was no such bombshell, or smoking gun, because none existed. None of the four justices which formed the majority was able to convincingly demonstrate that the results of the election were compromised enough to affect the overall outcome, or even come close.

They didn’t compare and contrast with all the other election results which took place on August 8, either at the governoship, senatorial, MP or Women Representative, level, which would have shown that the presidential results mirrored almost exactly the other results, bearing in mind that none of the other results were contested.

It is clear that the justices had to walk a very thin line between adhering to procedure and ensuring that the will of the people is expressed. Unfortunately, it seems like they missed the trees for the forest. They became too bogged down in the minutiae of the law rather than look at their fuller role, to be arbiters of whether the will of the people was expressed.

Precedent

If this verdict becomes a precedent it may become increasingly easy for any losing candidate to willfully and brazenly call for an annulment of the results based on some procedural or bureaucratic irregularities. This will play havoc in our system and ensure that we could become enveloped in a never-ending cycle of annulled elections.

It is impossible in any bureaucracy to ensure zero mistakes or even zero malfeasance, there will always be a minority. The bigger question that needs to always be asked; whether these irregularities are sufficient to take the very weighty decision to annul a whole election. If not, then the election should stand, as was clearly the case in this presidential election.

NASA’s lawyers were not able to demonstrate that eight million Kenyans did not vote for Uhuru Kenyatta, give or take a few hundreds or a few thousands of doubts expressed in irregular tallying. There was never a bombshell which put in doubt tens, or even hundreds of thousands, of Uhuru’s votes. The bombshell never came.

Thus, four men should not have overturned the will of eight million.

Mr. Murkomen is Senator of Elgeyo Marakwet County