Why Njoki's report on IEBC forms supports the majority judges decision

Supreme Court Judge  Njoki Ndung'u

Some 48 hours after the presidential election petition was filed, the IEBC deposited in the Supreme Court, 1 Form 34C, 291 Forms 34B and 41,451 Forms 34A. There were 41,743 forms in total. A scrutiny of these forms was undertaken by representatives of all parties and in the presence of officials of the Supreme Court led by the Registrar of the Supreme Court.

Following the conclusion of the scrutiny exercise, the Registrar prepared a report that was presented to the judges, and all parties were given an opportunity to address the Court on the report.  According to that report, among other findings, 5 Forms 34B were not signed by Returning Officers. These were the forms for Kisauni, Nyali, Likoni, Mandera South and Isiolo South constituencies.

Lady Justice Njoki Ndung’u in her dissent states that she single-handedly took the initiative to scrutinise each of the 41,743 forms in 21 days and also prepared an immaculate report of the results of her scrutiny and included it in her 440-page opinion.

In her dissent, she states that when she examined these 5 Forms 35B for Kisauni, Nyali, Likoni, Mandera South and Isiolo South constituencies she found that they were indeed signed by the Returning Officers.

Tabulated results

Is it not unusual for 4 judges in their opinion to state categorically that these forms were not signed, and for one judge to take a completely different factual position and criticise her colleagues for not taking the initiative to also personally scrutinise and analyse the 41,743 forms?

Though the intention of Lady Justice Ndung’u was to differ with her brothers and sister, ultimately her scrutiny and report supports the decision of the majority. This is why.

Section 39 (1C) of the Elections Act requires IEBC to electronically transmit, in the prescribed form, the tabulated results of an election for the president from a polling station to the Constituency Tallying Centre and to the National Tallying Centre.

According to the four judges of the majority opinion, simultaneous electronic transmission of results from the polling station to the Constituency and National Tallying Centre is not only intended to facilitate verification, but also acts as an insurance against potential electoral fraud by eliminating human intervention and intermeddling in the results chain. Parliament designed this system to ensure that there was no variance between the declared results and the transmitted ones.

Much was said about the forms supplied by IEBC to the Court in two of the three opinions by the Supreme Court judges. Lady Justice Ndung’u was satisfied with the content of the forms, and publishes in her opinion the report of her scrutiny exercise.

The majority were left asking questions: Why didn’t IEBC supply the original Form 34C whose elaborate signing ceremony was televised live across the country; why Form 34C had no watermark or serial number; of the Forms 34B, why 56 had no security features, 31 did not bear serial numbers, and 5 were not signed by the Returning Officers.

What stands out, and what ironically justifies the decision of the majority to nullify the presidential election is this: That even before the Supreme Court, the highest court in the land, the IEBC forms that the parties and the Registrar had access to, were different from the IEBC forms that the judges had access to.

Clearly, only simultaneous electronic transmission of the presidential elections results, in the prescribed Form 34A, coupled with real time uploading of Form 34A in the public portal before the announcement of any result by IEBC, can save our electoral process from the habitual human interference and intermeddling.

As the judges in Solomonic wisdom stated, “let the Constitution (and Laws of Kenya) become a constant irritant to those who bear the responsibility of leadership.”

- The writer is an advocate of the High Court of Kenya.

[email protected].