Maraga’s ruling attests to the court’s independence

Weighing scale – the signature symbol for the judicial system – always tilt right and left depending on the evidence adduced. And, on Friday at 11am, it slanted in a shocking fashion, thanks to the Supreme Court ruling on the August 8 presidential poll results. For the first time in Kenya and even in the history of African elections, the weighing scale tilted in favor of the plaintiff in a presidential petition – that sent shock waves across the globe. Most presidential election disputes in Africa, and even in other parts of the world, that end up in court are viewed as a formality or ventilating channel to appease the complainant. Majority of African supreme courts are remote controlled by the Executive. This is demonstrated by the fact that most courts rarely move into the next step of curing the root cause of the complaint. The ruling is both good and bad. Good in that it has restored the confidence in our Judiciary to resolve sensitive and complex issues. It is bad because of the cost of repeat election to be borne by taxpayers. One can argue such cost pales in comparison to gains made in the Supreme Court ruling to assert the judicial independence but also deepen our democratic processes and institutions. We may at the moment, not immediately know the weighty issues that led the Supreme Court to overturn the Presidential election until the ruling is out in 21 days. But one can deduce the following issues may have swayed the Bench, mostly from failed IEBC systems and processes. First, failure to use standardized forms 34A, 34B and form 34C- serialized and bar coded forms. Second, the electoral commission’s failure to have the forms executed correctly; missing signatures of agents and returning officers on Forms 34A and B. Failure to ensure full participation of party agents. Failure by IEBC to validate electronic with raw data. Failure by IEBC to fully comply with court orders in the access of servers and election KITs raised suspicions.

The use of technology experts also helped shed more light on what happened behind IEBC closed doors during the tallying. The beautiful thing is that the court has made it clear that President Uhuru Kenyatta did not do anything wrong, the voters did their part but IEBC is the main culprit who allowed the horse to bolt - whether this was done deliberately or out of incompetence remains to be seen. All Kenyans, including our institutions, have a role to play in the electoral process and must conduct themselves in utmost faith and fidelity to the law.