Judges trashed the sovereign will of the people in their ruling

Supreme Court judges Njoki Ndungu , Philomena Mwilu(Deputy Chief Justice), David Maraga(Chief Justice), Jackton Ojwang and Isaac Lenaola

As expected by its critics, the Supreme Court has affirmed that it was more concerned about the process rather than the results of the August 8 presidential election.

In the majority ruling, whose full version was delivered today, the judges affirmed that an election is not about numbers neither is it an event but rather a process.

In voiding President Uhuru Kenyatta’s win, the judges cast aspersions on the process of transmitting results from the constituencies, agreeing with NASA's presidential candidate Raila Odinga’s lawyers as to how the IEBC obtained Forms 34B without Forms 34A.

The judges also castigated observers for giving the exercise a clean bill of health even before the process of tallying, processing and announcing the final results was concluding.

Further, they held that IEBC’s failure to give NASA access to its servers appeared to back claims that the system had been manipulated to favour President Uhuru Kenyatta.

But as Justice Jackton Ojwang noted, the burden of proof that the election was bungled lay with Mr Odinga who should have produced evidence to back up his petition rather than shifting it to the electoral agency. As he rightly said, he made broad and vague claims were it not for the judges, led by Chief Justice David Maraga, bending over backwards by, for instance, admitting evidence filed out of time, perhaps so as to avoid the criticism that the court received after its 2013 petition ruling, his petition would have easily collapsed as it was built on quick sand.

There was no proof that there was massive, systemic non-compliance with the law that undermined the people’s sovereign power to elect their leaders.

While Mr Odinga’s lawyers have held that the system of transmitting the results was not simple, verifiable and accountable, the respondents throughout the petition were of the view that the outcome of the presidential contest would have been better determined at the constituency level following the court rulings in the Maina Kiai case that rendered the IEBC chairman as the National Returning Officer a bystander in the process by making them final and not subject to alteration.

The majority ruling, looked at from any respectable aspect, undermines the doctrine of one man one vote, which has over the years asserted fairness and equality in the world’s democracies. It is sad that the majority of the Supreme Court judges chose to concentrate on technicalities rather than the law.

Even before the August 8 elections, the superior courts had asserted that no election can be perfect in Kenya and, indeed, world over. Instead, what is important is whether any human error that takes place could have credibly led to a different result. Election results are not to be determined by technicality, but rather by a sober and objective analysis of reality.

As Justice Ojwang noted, the Supreme Court ruling gives a short thrift of the governing terms of the Constitution as well as set-out norms enshrined in enabling statutes that are subject to the Judiciary’s interpretation. It must be clear that the ultimate goal of justice should not be defeated due to technicalities in the law.

As both the majority and dissenting judges agreed, Kenyans came out in their multitudes and braved the vagaries of nature to cast their votes to elect their President and the Supreme Court should have taken into consideration the exercise of the people’s will before disturbing the outcome of the election outcome even when ranged against claims of improprieties, whose impact could as well not have changed the final result especially in a close contest such as the one between Mr Kenyatta and Mr Odinga.

Going forward, it may be necessary that Parliament considers extending the period within which the Supreme Court can consider and determine a presidential petition from the current 14 days to 30 days.

This would allow for comprehensive scrutiny of the presidential results, including a recount of the elections cast, to determine the legitimate winner without necessarily resorting to voiding of the result.

This would save the country unnecessary tension and economic disruption from the new round of politicking.

Ms Wayua is a Communication consultant