Justice Njoki Ndung'u, who together with
Justice Jackton Ojwang dissented with the majority decision to quash the
re-election of President Kenyatta, has criticised the judgment.
Judge
Ndung'u on Wednesday said she was satisfied that the August 8 poll was
conducted in accordance with the Constitution and election laws.
EVIDENCE
She discounted key parts of the evidence that informed the decision of the majority opinion.
The
judge, who said she analysed the entire evidence adduced by Independent
Elections and Boundaries Commission (IEBC) against the Nasa petition,
stated that the disputed Form 34As used to declare the election were
proper in form and content.
The
judge, who was the last to deliver her full decision, stated the court
must be sure there are real and not imaginary grounds for concluding
that the presidential results were not fair.
Chief Justice David Maraga, Deputy Chief
Justice Philomena Mwilu, Justice Smokin Wanjala and Justice Isaac
Lenaola had in their judgment upheld arguments by Nasa.
FORMS 34A
They
ruled that IEBC failed to verify the numbers before declaring Uhuru
Kenyatta the winner and Nasa proved that declaration was made before
receiving all the 40,883 Forms 34As in breach of the Elections Act.
The court also said that a random scrutiny of some Forms 34As showed there were widespread discrepancies.
Justice
Ndung’u, however, said she conducted a comprehensive analysis of all
the 291 Forms 34B (290 constituencies and Diaspora) and the disputed
Forms 34A and noted they were proper.
She
faulted her colleagues for not using the certified Forms filed in court
by the IEBC to verify the allegations made by the petitioner, Nasa
flag-bearer Raila Odinga.
Where there
were omissions, she said, the same could not affect the result of the
election and the court had powers to inspect other election materials to
verify the integrity of the elections.
PAPER TRAIL
But
Justice Ndung’u said there was a verifiable paper trail which the court
could use to verify the various allegations and which was not used.
She
further explained the verification and cited the various agents who
could carry out the process including IEBC, observers, the media, the
public and any election court hearing an election petition.
Therefore,
she said, the lack of security features or signatures from agents, as
cited by Nasa, was not by itself a reason to invalidate the election in a
scheme of interlocking verification mechanisms.
She ruled that the majority opinion did not have the basis to overturn the election of President Kenyatta.
“Verification is an exercise that comprises the entire electoral process,” she said.
In
her decision, the judge mostly focused on the rights of voters, arguing
that elections are “rights- centric” and not “form-centric” and further
emphasised that where the court is in doubt, inspection of the ballot
materials was essential.
VOTES
The
result of the election, she said, was never an issue and the same was
not shown to have been affected by the alleged irregularities or
illegalities.
According to her
ruling, there was no basis to reverse the will of voters and in the
absence of evidence, she added, a court must not interfere with the
people’s choice.
The judge also said
an assumption by the majority that since there were more votes cast in
favour of the Mr Kenyatta compared to governors and MPs then IEBC had
interfered with the result of the presidential election was wrong.
The
law allows a voter to cast only one ballot so long as the unused
ballots were kept aside in tamper proof envelopes, she informed the
other judges, adding that a voter is also not under any obligation to
vote for all six candidates in an election.
The
judge also faulted her colleagues for deliberately overturning a
previous decision of the court on Section 83 of the Elections Act to
favour a finding of nullity.
PRECEDENT
“Elections belong to everybody, and it is everyone’s responsibility to protect them,” she ruled.
On
the electronic transmission of results, she disagreed with the majority
decision that IEBC disobeyed the court’s order to provide access to ICT
logs and servers.
The judges had found that the commission’s failure to open itself up for scrutiny was proof that it was hiding something.
But
Justice Ndung’u said the court’s orders were very clear and distinct
that the IEBC was expected to provide a read-only copy of the logs in
the servers (with an option to copy).
“The
court did not give orders for the petitioner to access the first
respondent’s servers but only access the read-only copy information as
their integrity had to be protected,” she said.
In
polling stations not covered by 3G and 4G mobile phone networks, manual
transmission of results was the proper mode of transmission as it is
the complementary mechanism of technology, she stated.
MANUAL
A
legislative reconsideration of the electoral law to clarify that
technology is secondary to the manual transmission system should also be
made, according to her.
“Our electoral process is not purely electronic, it comprises of both manual and electronic, it is largely manual,” she stated.
Justice
Ndung’u also took issue with a part of the court’s majority that
threatened to nullify a repeat election if the similar errors raised in
their judgment recurred.
“It is
injudicious and imprudent. The discipline of an unappointed arm of the
government should be self-regulatory. No arm of the government is
infallible,” she said.
VOTER RIGHT
In
her opinion, a part of the judiciary should not be seen to threaten
parties with the likelihood of appearing before it in the future, adding
that it is mandatory that the Supreme Court only makes a determination
in an presidential election petition after thorough and proper
consideration of the evidence before it.
The majority judges, according to her, proceeded with the determination of the case akin to a court sitting on appeal.
In
her assessment, Mr Kenyatta was properly and validly elected as the
president and the effect of the judgment was to deny Kenyans their
right.
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