Two of the Kenyan Supreme Court justices that presided over the election petition and nullified the election dissented from the judgment.

Justice NS Ndungu and JB Ojwang disagreed with the opinion of the other four justices that the August 8 election was not conducted in accordance with the Constitution of Kenya.

Read below the summarised dissenting opinions of the two justices.                                  

REPUBLIC OF KENYA

                  IN THE SUPREME COURT OF KENYA AT NAIROBI

(Coram:  Maraga, CJ. & P; Mwilu, DCJ & V-P; Ibrahim, Ojwang, Wanjala, Njoki & Lenaola, SCJJ)

 

PETITION NO. 1 OF 2017

– BETWEEN–

1.  RAILA AMOLO ODINGA

2.  STEPHEN KALONZO MUSYOKA      …………..…………PETITIONERS

– AND–

1.   INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION

 

2.  THE CHAIRPERSON OF THE INDEPENDENT       …RESPONDENTS

      ELECTORAL AND BOUNDARIES COMMISSION

 

3.  H.E. UHURU MUIGAI KENYATTA 

SUMMARISED DISSENTING OPINION OF NJOKI NDUNGU, SCJ.

[1] The Court has rendered its Judgement by a majority. I am however, of a different opinion. At the heart of democracy are, the people, whose will constitute the strand of governance that we have chosen as a country. On 8^th August, 2017, millions of Kenyans from all walks of life yielded to the call of democracy and queued for many hours to fulfill their duty to our Republic by delegating their sovereign power to their democratically elected representatives. This was an exercise that was hailed by many regional and international observers as largely, free, fair, credible and peaceful. That duty stands sacred and is only to be upset if there is any compelling reason to do so. That reason must affect the outcome of the election.

[2] The election was managed by the 1^st Respondent chaired by the 2^nd Respondent who were assisted by hundreds of others to execute the mandate of the Commission under Article 88 of the Constitution. At the end of the process, the 2^nd Respondent, in accordance with Article 138 (10) of the Constitution, declared the result of the election. Having received more than half of all the votes cast in the election and at least twenty-five percent of the votes cast in each of more than half of the Counties, the 3^rdRespondent was declared President-elect. 

[3]  The case revolved around three fundamental questions: 

(i) whether the election was conducted in accordance with the Constitution and the law? (ii) whether there were irregularities and illegalities committed during the conduct of the election and (iii) if there were irregularities and illegalities, what was the integrity of the election? In answer to these three issues, my opinion is that the election was indeed conducted in accordance with the Constitution and the law. In fact, the 1^st and 2^ndRespondents to my satisfaction demonstrated that they had adhered to the directions given by the Court of Appeal in the case of Independent Electoral and Boundaries Commission vs. Maina Kiai & 5 Others, Civil Appeal No. 105 of 2017 (the Maina Kiai case). The Court of Appeal in this case cautioned, and I agree, that the results declared at the polling station are final. In fact, the polling station is at the heart of any election.  It is what happens there that is to be assessed and that is why its outcome is final. 

[4]  In any election, the ordinary Kenyan voter will ask themselves the following questions?

(1)  Was there a problem with registration of voters?

(2)  Were voters properly identified at the polling station?

(3)  Were voters allowed to cast their ballots peacefully and within good time?

(4)  Were the votes cast-counted, declared and verified at the polling station to the satisfaction of all parties?

If the answer to all these questions is in the affirmative, then the election has been conducted properly.

[5]  The Petitioners in my view did not present material evidence, to the standard required, to upset the results returned to the National Tallying Centre by the presiding officers in Forms 34A. Those results, counted and agreed upon by Agents at the polling station were not challenged. What was fiercely contested was the mode through which those results were transmitted from the polling station to the National Tallying Centre. The 1^st and 2^ndRespondents urged that transmission was conducted in line with the directions by the Court of Appeal in the Maina Kiai case. This process yielded the results that were streamed onto the portal and which, were not sufficiently impugned during the trial. The decision of the voter at the primary locale of the election, that is the polling station was unchallenged. How then can a process used to transmit those results for tallying upset the will of the electorate? It was not proved that the voter’s will during the conduct of elections, was so affected by any irregularities cited so as to place this Court or the country in doubt as to what the result of the election was. Challenges which are to be expected during the conduct of any election. However, those challenges which occurred, (and in my opinion, none of which occurred deliberately or in bad faith, and which fell particularly outside the remit of the voter and his/her will) – ought not to supplant the voter’s exercise of their right of suffrage. 

[6]   In summary, I respectfully disagree with the decision of the majority, and in accordance with Section 26(2) of the Supreme Court Act, 2011, and will issue my full dissenting Judgment within 21 days. 

DATED and DELIVERED at NAIROBI this 1^st day of September 2017 

………………………………………………………..

N. S. NDUNGU

JUSTICE OF THE SUPREME COURT

I certify that this is a true copy of the original

REGISTRAR, UPREME COURT OF KENYA

SUMMARISED DISSENTING OPINION OF OJWANG, SCJ.

[1]    It is not necessary in this summarized Judgment – which is to be followed by a fully detailed and reasoned decision on an occasion already signalled by the Chief Justice and President of the Court – to give the comprehensive facts, submissions and legal principles bearing upon the instant petition.

[2]  The important petition, which seeks the annulment of Kenya’s Presidential election results emanating from the General Elections of 8^th August, 2017, is focussed on a limited number of contentions: (a) that the said Presidential Election was not conducted in accordance with the relevant principles of the Constitution;  (b) that the said Presidential Election was compromised by certain illegalities and irregularities;  (c) that, consequently, the said General Election lacked integrity, and ought to be invalidated.

[3]  Whereas the substance of the case founded on illegality and irregularity rests on the voting-results electronic transmission process, there is substantial information showing that, by law, the conduct of the election should have been mainly manual, and only partially electronic. 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.

[4]  As regards the invocation of the Constitution as a basis for annulling the electoral process, only general attributions of impropriety have been made, and furthermore, without adherence to the prescription that the task of interpreting the Constitution with finality, rests with no one but the Courts – in this case, with this Supreme Court.

[5] Much of the evidence which the majority opinion adopts, is largely unascertained, apart from standing in contradiction to substantial, more credible evidence.

[6]  In such a marginal state of merits in the case challenging the conduct of elections on 8^th August, 2017, it is clear to me beyond peradventure, that there is not an iota of merit in invalidating the clear expression of the Kenyan people’s democratic will, which was recorded on 8^th August, 2017.

[7]   The procedural law for assuring the integrity of elections is abundantly set out in the Elections Act, 2011 (Act No. 11 of 2011), and in the Electoral Code of Conduct; and the relevant provisions were conscientiously applied by the Independent Electoral and Boundaries Commission, which fully provided for the role of international and local observers, as well as agents, in the conduct of the Presidential Election.  The resulting electoral process had all the vital features of merit, as all the observers publicly acknowledge.

[8] To disregard such outstanding features of merit in the just-concluded elections, is to overlook the most basic democratic principles which safeguard the electors’ entitlement to choose their public office-holders.

[9]   In summarized form, I hereby record, without equivocation, my dissent from the Judgment given by the numerical majority of the Supreme Court Bench.  For my part, I would dismiss in its entirety the petition which came up before us, as it was devoid of requisite supporting evidence, just as it did not rest upon the pillars of the Constitution, the ordinary law, or the pertinent elements inherent in the configuration of a democratic election.

[10]   In accordance with the terms of Section 26(2) of the Supreme Court Act, 2011 (Act No. 7 of 2011), I hereby reserve the detailed, reasoned edition of my opinion, to be delivered within the next 21 days.

DATE and DELIVERED at NAIROBI this 1^st day of September, 2017.

………………………………………………

J.B. OJWANG

JUSTICE OF THE SUPREME COURT