The Independent Electoral and Boundaries Commission’s (IEBC)
failure to meet constitutional and legal requirements led to
nullification of the August 8 presidential election, the Supreme Court
said on Wednesday.
The top court’s four judges, whose
decision led to nullification of the poll, said in a detailed judgment
that the discrepancies were so widespread as to have affected the final
outcome.
Chief Justice David Maraga said the anomalies
were of substantial nature and any court would have no option but to
overturn the results.
Justice Maraga said the
opposition National Super Alliance (Nasa) had discharged the legal
burden by proving that the IEBC declared President Uhuru Kenyatta the
winner of the presidential election before it received all the 40,883
Form 34As.
“The court holds that (Mr Wafula)
Chebukati – the IEBC chairman -- declared the winner using forms (some
with) dubious authenticity,” he said.
The judges
further found that the IEBC had disobeyed a court order requiring it to
open up its servers and logins for scrutiny, adding that the directive
afforded the polls agency a chance to disapprove the petitioners’ claim
that the systems were hacked and data, therein, infiltrated or
compromised.
Failure to comply with orders, which the
judges termed contemptuous, had left the court with no option but to
agree with the petitioners that the systems were interfered with or that
the commission bungled the elections and was not ready to admit the
mistake.
The judges held Mr Chebukati responsible for failure to explain
why the results were not transmitted in the manner prescribed by the
Constitution and electoral laws.
In the court’s view,
the process of getting a voter to cast his vote and have that vote count
on equal basis with the other voters, is as important as the election
result itself.
Deputy
Chief Justice Philomena Mwilu found that although Kenyans turned out in
large numbers to vote on election day, things went opaque thereafter
and it didn’t matter in the end whether President Uhuru Kenyatta got the
largest number of votes.
She said the election was
neither transparent nor verifiable and on that ground alone, the judges
had no choice but to nullify it.
The majority judges
rejected the IEBCs explanation that its failure to transmit results
electronically was due to network failure.
IEBC had
officials who ought to have known the areas not covered by network,
Justice Mwilu said, adding that the court had taken “judicial notice
that the IEBC had assured Kenyans a day to the elections that the
systems would not fail.”
The failure to transmit the
results as required by law was therefore in clear violation of Section
139(1)(c) of the Elections Act.
The
Judges, however, rejected the petitioner’s plea that they revisit the
issue of rejected votes and upheld the 2013 decision which found that
once a vote has been rejected, it cannot count in considering whether a
candidate has garnered 50 plus one vote.
The Supreme
Court nullified the re-election of President Uhuru Kenyatta, citing
irregularities and illegalities in the election. Justices Maraga, Mwilu,
Smokin Wanjala and Isaac Lenaola made the majority decision that
nullified the presidential election on September 1 and ordered the IEBC
to conduct a fresh poll within 60 days as provided for in the
Constitution.
Two judges - Justices JB Ojwang and
Njoki Ndungu, dissented saying the petitioner had not proved its case
and found no merit in it.
The IEBC has already set
October 17 as the date of the repeat poll but Nasa and Raila Odinga, its
presidential candidate, insist they will not go to the poll unless some
changes are made at the IEBC
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