Kenya’s Supreme Court lays blame on electoral body in voiding Kenyatta’s election

The electoral body IEBC failed to conduct the presidential elections in accordance with the constitution and elections law, Kenya’s Supreme Court observed Friday in declaring the election of Uhuru Kenyatta null.

The six judge bench in a 4-2 vote in favour of the petitioner’s plea said the irregularities on the part of the Independent Electoral Boundaries Commission (IEBC) compromised the process rendering the election of Kenyatta inconsistent with the law.

“The decision of the court is that the 1st Respondent (IEBC) failed, neglected or refused to conduct the Presidential Election in a manner consistent with the dictates of the Constitution and inter alia the Elections Act, Chapter 7 of the Laws of Kenya,” the Court observed.

The Court also held that it was satisfied the IEBC committed irregularities and illegalities in the conduct of the 2017 Presidential election in relation to the transmission of results.

“As to whether the irregularities and illegalities affected the integrity of the election, the court was satisfied that they did and thereby impugning the integrity of the entire Presidential Election,” Supreme Court President Justice David Maranga said in delivering the verdict.

The IEBC had declared Uhuru, the Jubilee candidate, winner of the presidential vote after he garnered 8,203,290 (54.27 per cent) votes against Raila’s 6,762, 224 (44.74 per cent).

The first and second petitioners-Raila Odinga and Kalonzo Musyoka who were challenging Kenyatta’s win as announced August 10 by IEBC chair Chebukati Wafula had urged the Court to dismiss the poll results noting the electoral process was gravely compromised.

The Court settled on the following areas for determination:

​i) Whether the 2017 Presidential Election was conducted in accordance with the principles laid down in the Constitution and the law relating to elections.

(ii) ​Whether there were irregularities and illegalities committed in the conduct of the 2017 Presidential Election.

(iii) ​If there were irregularities and illegalities, what was their impact, if any, on the integrity of the election?

Justices David Maraga (Chief Justice), Smokin Wanjala, Isaac Lenaola and Lady Justice Philomena Mwilu (Deputy Chief Justice) upheld the petitioner’s plea while Lady Justice Njoki Ndung’u and Justice Jackton Ojwang filed a dissenting opinion.

Both Justices Ndung’u and Ojwang held that the election irregularities were not sufficient ground to annul the election. ” There is not an iota of merit in invalidating the clear expression of the Kenyan people’s democratic will, which was recorded on 8th August, 2017,” Justice Ojwang opined.

In his dissenting opinion, Justice Ojwang observed the petitioners did not submit substantial evidence to justify claims the electoral results transmission process was compromised. “Hardly any conclusive evidence has been adduced in this regard, which demonstrates such a manifestation of irregularity as to justify the invalidation of the election results.”

Lady Justice Ndung’u built her argument on whether the voter’s will was violated. In a her verdict, Justice Ndung’u said it was clear from the evidence presented before the Court and as averred by local and international observers that the voter’s decision was in no way interfered with wondering why the electronic transmission process could form the basis to impugn the electoral result. “How then can a process used to transmit those results for tallying upset the will of the electorate?”

The Court nonetheless voided Kenyatta’s election victory.

“A declaration is hereby issued that the Presidential Election held on 8th August 2017 was not conducted in accordance with the Constitution and the applicable law rendering the declared result invalid, null and void,” the Court ruled.

“A declaration is hereby issued that the 3rd Respondent (Uhuru Kenyatta) was not validly declared as the President elect and that the declaration is invalid, null and void.”

The Court ordered the IEBC ‘to organize and conduct a fresh Presidential Election in strict conformity with the Constitution and the applicable election laws within 60 days of this determination under Article 140(3) of the Constitution’.

President Kenyatta said after the ruling he did not agree with the Supreme Court ruling noting, ‘six people (judges) could not overturn the will of the people’. He however added he accepts and will prepare for a return to the ballot in the next two months.

The Judges will issue detailed judgement containing their reasons in 21 days time.

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